IN THE SUPREME COURT OF FLORIDA______________________

CASE NO. _______________________________

5th DCA CASE NO. 5D01-1829

RESIDENCE INN BY MARRIOTT,INC., a foreign corporation, andMARRIOTT INTERNATIONAL,INC., a foreign corporation,

Defendants/Petitioners,

v.

CECILE RESORT LTD., a Florida limited partnership, andEURAMERICAN INVESTMENT CONSULTANTS CORP., a Floridacorporation,

Plaintiffs/Respondents._____________________________________/

PETITION FOR WRIT OF MANDAMUS

Residence Inn by Marriott, Inc. and Marriott International, Inc. (collectively,

Marriott), petition this Court for a Writ of Mandamus directing the Fifth District

Court of Appeal to reinstate and rule on Marriott's Petition for Writ of Certiorari.

The Fifth District dismissed Marriott's certiorari petition without reaching the

merits, erroneously ruling that Marriott's Petition for Writ of Certiorari was

2 2

untimely. We will demonstrate that Marriott's petition was timely and the Fifth

District should have reached its merits.

At issue in the courts below is a dispute concerning Marriott's obligation to

produce certain documents, documents that Marriott contends are irrelevant and

confidential. The question of timeliness arises because the trial court addressed the

production of the documents at issue over a series of hearings culminating in two

written orders, one on March 15, 2001 and one on May 24, 2001. Marriott took its

petition from the order of May 24, 2001. The Fifth District dismissed the petition

as untimely, ruling that Marriott should have filed its petition from the March 15,

2001 order.

As we show below, the district court's ruling overlooks that Marriott could

not have successfully petitioned from the March 15, 2001 order. That order merely

determined that Marriott would be required to produce documents already

produced in another case against Marriott, a case to be named by the plaintiffs.

Unexpectedly, plaintiffs selected a case in which the documents were sealed by a

California court as confidential. Marriott refused to produce these confidential

documents and the parties then litigated the confidentiality issue over a series of

hearings culminating in the May 24, 2001 order. In this order, the trial court, now

aware of the confidential nature of the documents at issue, nevertheless compelled

1 Mendez v. West Flagler Family Ass'n, Inc., 303 So. 2d 1 (Fla. 1974) (interlocutory order thatdismisses a separate and distinct cause of action is a final order requiring an immediate appeal).

3 3

production. Marriott then filed a petition for writ of certiorari, complaining that the

trial court had ordered the production of irrelevant and confidential documents.

The Fifth District's erroneous determination that Marriott should have

petitioned from the March 15 ruling of the trial court ignores that the trial court had

not yet been presented, nor ruled on, the critical confidentiality issue that was the

centerpiece of Marriott's Petition for Writ of Certiorari. In fact, the March 15 order

was only the start, not the completion, of the trial court's judicial labors concerning

the discovery dispute dividing the parties. A petition for writ of certiorari from the

March 15 order would have been futile because Marriott could not then have

proved irreparable harm, and because the trial judge had not yet even reached the

confidentiality issue that was the subject of the petition.

In effect, the Fifth District resurrects the Mendez trap.1 The Fifth District's

ruling, if allowed to stand, would encourage parties who wish to preserve their right

to seek review of an ongoing dispute to file a protective petition for writ of

certiorari at every possible point of appellate entry, regardless of whether the

petition has merit, and regardless of whether the petition is premature. This Court

should discourage the piecemeal appellate review that would be the inevitable result

of the Fifth District's ruling by issuing the Writ of Mandamus and confirming that

4 4

Marriott's Petition for Writ of Certiorari was timely.

JURISDICTION

A petition for writ of mandamus is the appropriate remedy to correct an

erroneous refusal to exercise jurisdiction by a District Court of Appeal. See

Kaweblum v. Thornhill Estates Homeowner's Ass'n, Inc., 755 So. 2d 85 (Fla.

2000); Pino v. District Court of Appeal, Third District, 604 So. 2d 1232 (Fla.

1992); State ex rel. Gaines Constr. Co. v. Pearson, 154 So. 2d 833 (Fla. 1963).

Thus, the Fifth District's erroneous determination that Marriott's appeal was

untimely filed is reviewable by mandamus. See Sky Lake & Carter Recreation,

Inc. v. District Court of Appeal, Third District, 511 So. 2d 293, 294 (Fla. 1987)

(reinstating appeal erroneously dismissed as untimely); Pino, 604 So. 2d at 1233

(same).

Although the decision to issue a petition for writ of certiorari is discretionary,

here the district court never exercised that discretion because it erroneously

determined that it had no jurisdiction. Marriott does not seek to have this Court

review the merits; instead, it seeks this Court to review only the district court's

determination that it was without jurisdiction to consider the merits. See In re

Estate of Laflin v. District Court of Appeal, Fourth District, 569 So. 2d 1273 (Fla.

1990) (issuing writ of mandamus to review the district court's dismissal of petition

5 5

for certiorari on jurisdictional grounds); State ex rel. Hopps v. Horne, 75 Fla. 149,

77 So. 672, 673 (Fla. 1918) ("the rule is that mandamus is the proper remedy to

compel its exercise where a court refuses to exercise jurisdiction which it clearly

possesses."); Sky Lake Gardens, 511 So. 2d at 294 ("we further conclude that the

district court has a ministerial duty to consider and decide the appeal”). See also

State ex rel. Duke v. Wills, 49 Fla. 380, 38 So. 289, 291 (1905) (distinguishing

between dismissal on jurisdictional grounds which impacts the court's ministerial

duty to exercise jurisdiction and a dismissal on the merits which is discretionary).

STATEMENT OF THE FACTS

Marriott's Petition for Writ of Certiorari concerns a trial court order

compelling Marriott to produce documents that were not only irrelevant but were

confidential and which had been placed under seal by an order of a California

Court. The discovery dispute was the subject of at least five motions, three

responses, five hearings, and two rehearings before the trial court completely

resolved the discovery matter at issue and entered the May 24, 2001 order from

which Marriott sought certiorari. Because the question before this Court is at what

point Marriott should have filed its Petition, we recount the procedural history in

some detail.

2 References are to the Appendix filed with this petition.

6 6

The Request for Production and Motion For Protective Order

The dispute below is between Marriott and one of its former franchisees,

plaintiff Cecile Resorts Limited ("Cecile"). Marriott contends that Cecile was

operating its hotel in a substandard manner. Cecile counters that Marriott breached

the parties' franchise agreement.

After two and one half years of litigation — and only two months before the

scheduled trial date (App. Tab 12 at 1)2 — Cecile requested that Marriott produce

documents that Cecile maintained would tend to show that Marriott had engaged in

price discrimination or commercial bribery (App. Tab 6 at 3-4, Requests 1 & 2).

Cecile also asked for any complaints Marriott had received between 1995 and 1999

that alleged a violation of the Robinson-Patman Act, any commercial bribery

statute, or any RICO Act (App. Tab 6 at 4-5 Requests 4-6). Marriott, moving for a

protective order, responded that the discovery requested was irrelevant and

immaterial — the amended complaint contained only contract claims and no claims

of unlawful payments, no RICO claims, no claims of commercial bribery, and no

statutory claims of price discrimination (App. Tab 5; App. Tab 7).

During the first hearing on this matter, which occurred on March 1, 2001,

Marriott explained to the trial court that the discovery sought by Cecile did not even

remotely relate to the issues framed by the pleadings in this case (App. Tab 8 at

3 As counsel for Marriott later stated to the trial court, this order on rehearing "determined thatkickbacks, RICO, commercial bribery, all of that, is just not part of the case." (App. Tab 14 at 5). This statement was never disputed.

7 7

12-16). Rather, Marriott argued, Cecile’s last-minute “detour” into these claims of

unlawful payments, RICO, Robinson-Patman price discrimination, and commercial

bribery was nothing more than “a fishing expedition of the old type” (App. Tab 8 at

16). At the conclusion of the hearing, the trial court denied Marriott’s motion for

protective order, ruling from the bench that “much of this discovery goes to the

damages issues” (App. Tab 8 at 31). On March 5, 2001, Marriott moved for

rehearing before the trial court order was reduced to writing (App. Tab 9).

Marriott's Motion for Rehearing was heard on March 13, 2001. At that

hearing, the trial court expressed concerns about the breadth and relevance of

plaintiffs' requests.3 In response to suggestions by plaintiffs that similar issues had

been raised in other litigation against Marriott, the trial court forged what it viewed

as a compromise. The trial court directed Marriott to produce documents already

produced in one case against Marriott, a case to be designated by Cecile after the

hearing (App. Tab 10). Later that afternoon, counsel for Cecile wrote to Marriott

informing Marriott that the case it selected was Pacific Landmark v. Marriott, et

al., a breach of management agreement suit filed in California in 1992 and settled in

1996 (App. Tab 1 at 2; App. Tab 11 at 2 and exhibits A; App. Tab 13 J. Akers

Aff.). Unaware of the designation, the trial court memorialized its ruling of

4 The case concerned matters that arose before 1992 and thus any information contained in thedocuments produced in Pacific Landmark hardly could relate to the damage period claimed in thepresent case to have begun in 1997 (App. Tab 5). Moreover, Pacific Landmark's suit against Marriottdid not involve issues relating to franchisees since there, Marriott simply managed the property ownedby Pacific Landmark Hotel, Ltd. (App. Tab 13 J. Akers' Aff.). For other information describing thecase, see Pacific Landmark Hotel, Ltd. v. Marriott Hotels, Inc., 23 Cal. Rptr. 2d 555 (Cal. Ct.App. 1993).

8 8

March 13, in a written order executed immediately thereafter on March 15, 2001.

The order granted Marriott's Motion for Rehearing and ruled that Marriott "shall

only be required to produce documents from the case identified by Plaintiffs'

counsel" (App. Tab 10). The order does not refer to the Pacific Landmark

documents.

The parties discovered that Cecile's designation of the Pacific Landmark

case complicated, rather than simplified, plaintiffs' discovery request. The

documents in Pacific Landmark were the subject of a confidentiality order entered

by the California trial court and subsequently incorporated into the parties'

agreement settling the Pacific Landmark case (App. Tab 11; App. Tab 13

J. Aker's Aff.; App. Tab 14 at 5; App. Tab 15 at 8-9). 4

Having determined that the documents were confidential, Marriott advised

the plaintiffs at a corporate deposition on March 21 that the documents would not

be produced. Plaintiffs responded with their tenth motion to compel on March 26,

presenting the confidentiality issue to the trial court for the first time.

Acknowledging that the documents found to be confidential by the California

9 9

court were "beyond [its] authority to reach" (App. Tab 15 at 12), the trial court

grappled with whether it could facilitate Cecile's discovery while still according

comity to the California court's determination that these documents were

confidential (App. Tab 15 at 8-13, 16, 20). At a series of hearings occurring on

April 24, April 30, May 7, May 21, and May 24, the court wavered between several

potential solutions, including ordering Marriott to produce the Pacific Landmark

documents subject to the existing order of the California court (App. Tab 14 at 6;

App. Tab 15 at 16, 20) or compelling Marriott to produce documents in its

possession relating only to its business dealings with the Pacific Landmark Hotel

entities (App. Tab 15 at 22-23). Recognizing the difficulties presented by the

confidentiality order, the trial court stated that it was prepared "at some point" to

enter an order requiring the production of the Pacific Landmark documents, but

that it did not want to violate the California court order, which required leave of

court for release of the documents under seal (App. Tab 21 at 26-27).

The Trial Court Rules.

This series of hearings culminated in the trial court's written order of May 24,

2001. In an abrupt turnabout, the May 24 order, which was prepared by Cecile's

counsel, compelled Marriott to produce within 20 days the Pacific Landmark

documents that were "under seal in a warehouse in California pursuant to the

California dismissal order" (App. Tab 22 at 3-5, 7, 14, 18, 22; App. Tab 23).

10 10

Marriott Files its Petition for Writ of Certiorari.

On June 21, Marriott filed its Petition for Writ of Certiorari seeking the Fifth

District Court of Appeal's review of the trial court's order compelling production

(App. Tab 24). In that petition, Marriott argued that the trial court had departed

from the essential requirements of law by compelling the production of documents

that had absolutely no relevance to the litigation and would not lead to the

discovery of relevant information. Marriott demonstrated that the improper

discovery order resulted in irreparable harm not redressable upon plenary appeal

because of the confidential nature of the documents at issue. Thus, Marriott's

petition presented the classic "cat out of the bag" discovery dispute often

successfully addressed by certiorari. See, e.g., Martin-Johnson, Inc. v. Savage,

509 So. 2d 1097, 1100 (Fla. 1987).

The Fifth District sua sponte issued an order to show cause why Marriott's

petition should not be dismissed as untimely (App. Tab 25). The show cause

order questioned whether Marriott should have filed its petition for writ of certiorari

from the trial court's March 15 order requiring Marriott to produce documents from

a case to be designated by the plaintiffs. Id. Marriott responded, pointing out that

the confidentiality issue did not become apparent and was not presented to the trial

court until the series of hearings that began on April 24, 2001 (App. Tab 26; App.

Tab 28). These hearings culminated in the May 24, 2001 order from which

Marriott filed its certiorari petition.

5 Marriott's petition for certiorari was actually filed June 21, not July 21, 2001.

11 11

On August 6, 2001, the Fifth District dismissed Marriott's petition as

untimely. According to the court:

The court finds that the March 15, 2001 order rendered belowsubjected petitioners to discovery of the documents from theCalifornia case. Accordingly, it is

"ORDERED, sua sponte, that the PETITION FOR WRIT OFCERTIORARI, filed July 21, 2001,

5 being untimely, is dismissed for lack of jurisdiction. Such dismissal is withoutprejudice to petitioners raising the discovery issue in any subsequent direct appeal.

(App. Tab 29).

Marriott Seeks a Stay of the Document Production.

Marriott filed a motion with the trial court to extend the stay of the document

production pending review of the jurisdictional question presented by this mandamus

petition in this Court. The trial court denied the motion and ordered that the documents

be delivered within seven days to a discovery special master. The documents are to be

released by the special master to the plaintiffs on October 16, 2001 unless ordered

otherwise by this Court or the trial court (App. Tab 30).

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ARGUMENT

Marriott's Petition for Writ of Certiorari was timely. The May 24 Order was

the trial court's first written ruling addressing the issue of confidentiality and

ordering Marriott to produce the documents despite the California confidentiality

order. A petition for writ of certiorari from the March 15 order would have been

correctly dismissed because Marriott could not have shown irreparable harm and

because the petition would have been premature until the trial court completed its

labors concerning the confidentiality issue. To suggest that Marriott was required

to preserve its right of review by filing an unmeritorious and premature petition

would encourage wasteful and piecemeal appellate review. Parties would be

required to file multiple preliminary protective petitions for certiorari or risk that the

right of review would be denied as untimely. Put simply, if the Fifth District's order

is allowed to stand, the Mendez trap, which plagued litigants in the mid-1970's,

would be reincarnated in another form.

Marriott Had No Right of Review From the March 15 Order.

As this Court has cautioned on numerous occasions, not every order

erroneously compelling discovery is worthy of certiorari review. See Martin-

Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987). It is not enough to

prove that the trial court's ruling departed from the essential requirements of law.

To successfully invoke the appellate court's certiorari jurisdiction, the petitioner

must show that the production of the documents "may reasonably cause material

6 See also Wal-Mart Stores, Inc. v. Cumming, 736 So. 2d 1248 (Fla. 4th DCA 1999); LibertyMut. Ins. Co. v. Lease America, Inc., 735 So. 2d 560 (Fla. 4th DCA 1999); Suroor Bin Mohammedal Nahyan v. First Inv. Corp., 701 So. 2d 561 (Fla. 5th DCA 1997).

13 13

injury of an irreparable nature." Id. The most common example is "cat out of the

bag" material such as privileged or confidential information that causes harm that

cannot later be corrected once the information is released. Id.

Thus, to successfully invoke the Fifth District's certiorari jurisdiction,

Marriott had to do more than show that the documents requested are irrelevant.

Marriott was also required to show that the discovery of the information will cause

irreparable harm. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94-95 (Fla. 1995).

Following the teaching of Martin-Johnson and Langston, the district courts of

appeal routinely dismiss petitions for certiorari seeking to review discovery orders

in the absence of a showing of irreparable harm. See Megaflight, Inc. v. Lamb,

749 So. 2d 594 (Fla. 5th DCA 2000) (dismissing petition for certiorari because the

documents at issue were not privileged or confidential); Aspex Eyeware, Inc. v.

Ross, 778 So. 2d 481 (Fla. 4th DCA 2001) ("the production of irrelevant material

does not rise to the level of irreparable harm for certiorari to lie").6

These cases leave no doubt that Marriott had no right to certiorari review of

the March 15, 2001 order of the court. That order simply confirmed that the

plaintiffs could request the production of documents relating to a particular case

selected by the plaintiffs. It was not until the series of hearings taking place after

14 14

March 15 that the confidentiality problem created by plaintiffs' choice of Pacific

Landmark was recognized and presented to the court. To summarize the

chronology of events:

March 1, 2001. The trial court denies Marriott's motion for protective order in aruling from the bench.

March 5, 2001. Marriott moves for rehearing.

March 13, 2001. Ruling from the bench, the trial court grants Marriott's motionfor rehearing. Plaintiff's production request will be narrowed to documentsfrom one case to be designated after the hearing by the plaintiffs.

March 13, 2001. After the hearing, the plaintiffs send a letter designating thePacific Landmark case.

March 15, 2001. The trial court enters the written order compelling production ofdocuments from one case to be designated by the plaintiffs. The order did notidentify the Pacific Landmark documents but only memorialized the March 13ruling from the bench.

March 21, 2001. Marriott refuses to produce the documents because of theCalifornia confidentiality order.

March 26, 2001. Plaintiffs file a motion to compel addressing for the first timethe Pacific Landmark documents and the confidentiality issues raised by theproduction of these documents.

April 24 – April 30 – May 7 – May 21, 2001. The trial court holds a series ofhearings grappling with the confidentiality problem.

May 24, 2001. The trial court rejects Marriott's confidentiality argument andenters a written order requiring the production of the Pacific Landmarkdocuments.

June 21, 2001. Marriott files its Petition for Writ of Certiorari

Had Marriott filed a petition for writ of certiorari from the March 15 order, it

7 Indeed, there was nothing in the record to indicate that the trial judge was even aware of plaintiffs'designation at the time of the March 15, 2001 order.

15 15

would have been dismissed for lack of any irreparable harm. At that point in the

proceedings, there was nothing in the record to suggest that the documents

designated by the plaintiffs on March 13 presented significant confidentiality

issues.7 Thus, there was nothing in the record to support the "cat out of the bag"

confidentiality argument that formed the heart of Marriott's later Petition for Writ of

Certiorari. The record on the confidentiality issue was not created until after

March 21 when Marriott, having recognized the confidential nature of the

documents recently designated by plaintiffs, raised the issue and refused to

produce, and plaintiffs filed their motion to compel.

Nor can there be any complaint that Marriott did not act promptly in raising

the confidentiality issue. Plaintiffs' designated the 1992 litigation the afternoon of

March 13. Within 8 days, Marriott determined that plaintiffs' choice of the Pacific

Landmark case raised confidentiality issues and brought this issue to the attention

of the plaintiffs. The parties promptly brought the issue to the attention of the trial

court. Recognizing the importance of the issue, the trial court addressed it over a

series of four more hearings attempting to reach a solution that balanced the interest

of plaintiffs' request for production and Marriott's interest in confidentiality. It was

this record, created over those four hearings, that led to the May 24 order and

which, in turn, gave rise to Marriott's right to petition the Fifth District for a writ of

16 16

certiorari.

Marriott Could Not Have Raised theConfidentiality Order in an Earlier Petition.

Had Marriott filed a petition for writ of certiorari from the March 15 order

and, in that petition, had attempted to raise the confidentiality issue, the petition

would have been dismissed as violative of the rules of appellate procedure and as

premature. To begin with, any attempt to raise the confidentiality issue would have

required going outside the record. The plaintiffs' letter designating the Pacific

Landmark documents had not yet been considered by the trial court and was not

yet part of the record. As discussed above, the record on confidentiality was

developed between March 26 and May 24.

Moreover, any petition prior to May 24 would have been premature because

the judge's labor on the issue of the production of the documents was not yet

complete. Basic principles of appellate review counsel that an appellate court

should not reach issues not yet ruled upon by the trial court and should not

intercede until the trial court's work on the issue is complete.

Applying these principles, appellate courts routinely dismiss requests for

interlocutory review when the trial court has not yet had an opportunity to rule on

the issue presented. See, e.g., Barber v. Wonderland Greyhound Park, 656 So.

2d 961, 962 (Fla. 5th DCA) (declining to review matter not yet reached by a trial

court); State Farm Mut. Auto. Ins. Co. v. Lenard, 531 So. 2d 180, 182 (Fla. 2d

8 For example, Rule 9.130(a)(3)(C)(iv) permitted interlocutory review of orders granting affirmativerelief in favor of a party. In interpreting the rule (before its recent repeal) courts restricted the rule toorders that determine the issue of liability in favor of a party seeking affirmative relief as opposed to anissue of liability. Vanaman v. Suggs, 767 So. 2d 582 (Fla. 5th DCA 2000). Similarly, interlocutoryrulings on attorneys fees are not appealable until the court has ruled on both entitlement and liability. Winkelman v. Toll, 632 So. 2d 130 (Fla. 4th DCA 1994).

17 17

DCA 1988) (dismissing petition for writ of certiorari as premature because the

discovery issue had not yet been presented to or ruled on by the trial court);

Cousino v. State, 473 So. 2d 777, 778 (Fla. 3d DCA 1985) (dismissing petition for

common law certiorari because the trial court's tentative ruling did not yet constitute

the denial of the motion for protective order.)

Similarly, in an effort to avoid piecemeal appellate review, appellate courts

deny attempts to seek interlocutory review before the trial court has finished its

labors in connection with the issue to be reviewed. For example, in Morton v. City

of Miami Beach, 376 So. 2d 279 (Fla. 3d DCA 1979), the trial court entered an

interim order granting an accounting. At the time, additional issues in connection

with the accounting remained to be decided. The appellate court determined that

there was no right to interlocutory appeal or certiorari review until the trial court

completed the full accounting. Id. at 281. According to the court, "[t]o review this

partial order of accounting before the full accounting is completed in the trial would

be contrary" to the rule against "piecemeal appeals." Id. See also Hernando

County v. Leisure Hills, Inc., 648 So. 2d 257, 258 (Fla. 5th DCA 1994) (partial

ruling on liability could not support an interlocutory appeal).8

18 18

The Fifth District's ruling below seems to suggest that, because the trial

court's March 15 order requires the production of the documents at issue, Marriott

had to file its petition from that order or forever lose its right to interlocutory

appellate review. As discussed above, as of March 15, the trial court had not yet

ruled on the confidentiality issue and there was no record of irreparable harm.

Marriott was not required to file a meritless petition to preserve its right of appellate

review.

The clearest statement of this principle appears in State v. Ayala, 604 So. 2d

1275 (Fla. 4th DCA 1992). In Ayala, the trial court in January, 1992 determined that

certain evidence was inadmissible. Later, the state obtained new information and

reraised the evidentiary issue with the trial court in July which again ruled the

evidence inadmissible. The defendant attempted to dismiss the state's petition for

writ of certiorari as untimely, arguing that the state was required to bring its petition

within 30 days of the January ruling. The Fourth District disagreed. The state had

the right to supplement the record in the trial court and seek review of the trial

court's later ruling. According to the court:

The mere fact, standing alone, that the state has the right to seekimmediate review of pre-trial orders excluding similar crimes evidencedoes not necessarily yield the conclusion that the state must do so atthe moment of the trial court's first expression on the subject, orforever lose it.

604 So. 2d at 1276.

Similarly, in Balboa Ins. Co. v. Vanscooter, 526 So. 2d 779 (Fla. 2d DCA

9 There are cases that suggest that a party may not evade the thirty day time limit for filing a petitionfor writ of certiorari merely by re-raising the same issue in a duplicative motion. See BensonhurstDrywall, Inc. v. Ledesma, 583 So. 2d 1094 (Fla. 4th DCA 1991). Here, by contrast, the trial court'sextensive May 24 order was much more than just a reiteration of its sketchy order of March 15. The

19 19

1988) the trial court ruled in December, 1987, that the defendant was required to

produce its claim file unless it prevailed on its upcoming motion for summary

judgment. Summary judgment was later denied. In February, 1988, the court

ordered production and defendant petitioned for certiorari. The Second District

rejected plaintiff's argument that defendants should have petitioned from the

December, 1987 order and not waited until the February, 1988 ruling. The court

recognized that the issue of disclosure "was not ripe for appellate review" until

summary judgment was denied and the court ordered production.

Marriott's case is even stronger. In both Ayala and Balboa, the appellate

courts permitted petitions for review from the trial court's second ruling on the

disputed issue. Here, Marriott seeks review of the trial court's first ruling on

confidentiality. The trial court did not rule on the confidentiality issue raised by

plaintiffs' choice of the Pacific Landmark documents until the May 24 order from

which Marriott sought review. The court's March 15 order did nothing more than

suggest generally that plaintiffs could designate a case and that Marriott would be

required to produce documents from the designated case. Marriott had the right

(and indeed the duty) to present to the trial court the confidentiality issues raised by

plaintiffs' designation before seeking appellate review. See Ayala, 604 So. 2d at

1276.9

May 24 order for the first time dealt with the specific documents sought by the plaintiffs and the issue ofconfidentiality. See Balboa, 526 So. 2d at 779-80 (second of two orders was not just a "ministerial"enforcement of the earlier order).10 This Court disengaged the trap by the adoption of Rule 9.110(k) which states that a party may seekreview of a partial final judgment either immediately or at the end of the case upon plenary appeal.

20 20

Resurrection of the Mendez Trap

To deny Marriott's mandamus petition would be to encourage either

piecemeal review or the filing of unnecessary "protective" petitions for certiorari.

Essentially, the Fifth District's ruling springs the "Mendez Trap,” long thought to be

dormant. In Mendez v. Flagler Family Ass'n, Inc., 303 So. 2d 1 (Fla. 1974) this

Court determined that a trial court's partial ruling on liability could be sufficiently

separate and distinct from the rest of the case to constitute a final order and require

an appeal within thirty days. Mendez left litigants in the difficult position of having

to guess whether particular interlocutory rulings were sufficiently final to support an

appeal. Careful litigants filed protective notices of appeal from every interlocutory

ruling dismissing a portion of a case to protect against a later determination that the

ruling could support a separate and independent appeal. 10

The Fifth District's ruling resurrects the same dilemma once created by

Mendez. Litigants in Marriott's position would be forced to file protective writs of

certiorari whenever a trial court touches upon an issue that may later be the subject

of interlocutory review, even if the record is not yet complete and the trial court has

not ruled on the critical issue. Such protective petitions are even more disruptive

21 21

than the protective notices of appeal once required by Mendez. A protective

petition for certiorari requires the petitioner to fully brief the arguments raised and

the appellate court to review those arguments for sufficiency.

Marriott had no obligation to file its petition before the development of the

record and the trial court's ruling on confidentiality. Its petition for certiorari was

timely. This Court should issue the petition for writ of mandamus and refuse the

Fifth District's invitation to resurrect the Mendez trap.

CONCLUSION

For all the foregoing reasons, this Court should issue the petition for writ of

mandamus and direct the Fifth District Court of Appeal to reinstate and rule upon

Marriott's petition for writ of certiorari.

Respectfully submitted,

HOLLAND & KNIGHT LLPCounsel for Defendants/Petitioners

By: __________________________

Eli H. Subin, FBN 0079123 Daniel S. Pearson, FBN 062079Scott A. Justice, FBN 087815 Ilene L. Pabian, FBN 0062499200 South Orange Ave., Suite 2600 701 Brickell Avenue, Suite 3000Orlando, FL 32802 Miami, FL 33131Tel: (407) 244-1130 Tel: (305) 374-8500Fax: (407) 244-5288 Fax: (305) 789-7799

Stephen H. Grimes, FBN 032005 Steven L. Brannock, FBN 319651Post Office Drawer 810 400 North Ashley DriveTallahassee, FL 32302-0810 Tampa, FL 33602

22 22

Ph. (850) 224-7000 Tel: (813) 227-8500Fax (850) 224-8832 Fax: (813) 229-0134

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

Petition for Writ of Mandamus and Appendix to the Petition has been furnished to:

Gretchen R. H. Vose, Esq., Vose, Blau & Hayes, P.A., Counsel for

Plaintiffs/Respondents, 2705 West Fairbanks Avenue, Winter Park, Florida 32789

and The Fifth District Court of Appeal, c/o Frank J. Habershaw, Clerk, 300

South Beach Street, Daytona Beach, FL 32114 on this ____ day of August, 2001.

__________________________Attorney

CERTIFICATE OF COMPLIANCE

Counsel for Petitioners certifies that this petition complies with the font

requirements set forth in Rule 9.100(l) of the Florida Rules of Appellate Procedure,

as it has been prepared in Times New Roman 14-point font.

__________________________Attorney

TPA1 #1162039 v1