NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT


VILLA BELLINI RISTORANTE & LOUNGE, )
INC.,                                    )
                                         )
           Appellant,                    )
                                         )
v.                                       )            Case No. 2D18-2249
                                         )
CIRO MANCINI, and QAMM                   )
PROPERTIES, INC., a Florida corporation, )
                                         )
           Appellees.                    )
                                         )

Opinion filed November 15, 2019.

Appeal from the Circuit Court for Pinellas
County; George M. Jirotka, Judge.

Stacy D. Blank of Holland & Knight LLP,
Tampa, for Appellant.

Brandon S. Vesely and Shannon T. Sinai
(withdrew after briefing) of Albertelli Law,
Tampa; Brandon S. Vesely of The Florida
Appellate Firm, P.A., St. Petersburg
(substituted as counsel of record), for
Appellee Ciro Mancini.

No appearance for Appellee QAMM
Properties, Inc.




LUCAS, Judge.
              On the surface, this is a business dispute over the right of a shareholder to

inspect his corporation's records; but the real controversy here is whether Ciro Mancini,

an executive chef, is in fact a shareholder of Villa Bellini Ristorante & Lounge, Inc. (Villa

Bellini). Following an evidentiary hearing, the circuit court issued its "Final Order

Granting Petitioner's Writ of Mandamus and Motion for Summary Relief" in favor of Mr.

Mancini and determined that Mr. Mancini was indeed a Villa Bellini shareholder and

that, as such, he was entitled to access and review of Villa Bellini's corporate records.

Villa Bellini appeals from that order.

                                               I.

              In the interest of brevity, we will relate several of the circuit court's factual

findings to provide some of the factual background of this appeal:

              On or about January 27, 2014, Ciro Mancini
              ("Mancini"), an Italian chef working at a restaurant in
              Dunedin . . . spoke with a man by the name of Marco
              Marzocca ("Marzocca") about opening an Italian
              restaurant called Villa Bellini Ristorante, LLC. . . .

                     ....

              On or about July 24, 2014, Villa Bellini [Ristorante]
              and Lounge, Inc. ("VBRL") was established and
              incorporated and Villa Bellini Ristorante, LLC ceased
              operations.

              Amongst other things, Mancini, as general manager
              and executive chef of VBRL, was responsible for
              overseeing the buildout, the hiring of employees, and
              the menu to the new restaurant, VBRL.

              In his position as Executive Chef of VBRL, Mancini
              was paid a salary.

              On or about September 20, 2016, Mancini was
              terminated as the Executive Chef of VBRL. . . .



                                             -2-
              After September 20, 2016, Mancini, through counsel,
              made requests for inspection of books and records of
              VBRL pursuant to a statutory demand for inspection
              Chapter § 607.1602, Florida Statutes (2016 as
              amended) but said requests were denied because
              VBRL, Inc. did not recognize Mancini as a
              shareholder.

              What followed Mr. Mancini's termination and unsuccessful demand to

review Villa Bellini's records was Mr. Mancini's filing of a verified petition for writ of

mandamus against Villa Bellini. Mr. Mancini also filed a "Motion for Summary Relief

and Expedited Relief Pursuant to Fla. Stat. § 607.1604(1) and Expedited Relief

Pursuant to Fla. Stat. § 607.1604(2)" in which Mr. Mancini, quite candidly, alleged that

the underlying purpose for the requested documents was to "determine the existence

and merits" of potential legal and equitable claims Mr. Mancini would pursue against

Villa Bellini and its shareholders. However, as Mr. Mancini conceded (in a subsequent

motion to consolidate and stay), the determination of Mr. Mancini's status as a

shareholder of Villa Bellini—that is, whether he was one—was an important preliminary

issue that "must be made in the first instance" by the circuit court.

              Perhaps not surprisingly, that issue was both somewhat convoluted and

hotly contested. We need not detail all the bank records, tax returns, amended tax

returns, and corporate records that were brought to the circuit court's attention. Suffice

it to say, there were discrepancies—early corporate filings reflected Mr. Mancini owning

60,000 of Villa Bellini's 240,000 authorized shares; amended records later deleted that

ownership interest.1



              1The  record does not reflect that Villa Bellini issued physical certificates of
shares to any of its shareholders.

                                              -3-
              On April 6 and 12, 2018, the circuit court convened an evidentiary hearing

on Mr. Mancini's motion for summary relief and considered the merits of his mandamus

petition. At the outset of the proceeding, the court announced that the hearing was "a

show-cause hearing whether this Court should not immediately issue a writ of

mandamus," which raised another preliminary issue: who had the burden of

persuasion? Villa Bellini's counsel maintained that the burden remained on the

petitioner, while Mr. Mancini argued that the burden would be on the respondent to

show good cause why Mr. Mancini was not entitled to the corporate records he sought.

The court agreed with Mr. Mancini and indicated that Villa Bellini bore the burden of

showing "why this Court should not issue a writ of mandamus," and the parties then

proceeded to present their respective cases.

              From our review of the evidentiary hearing, the underlying issue of Mr.

Mancini's status as a shareholder was anything but clear. The current president (and

partial owner) of Villa Bellini, Vincent Addonisio, testified that Mr. Mancini never became

a shareholder of Villa Bellini because Mr. Mancini never contributed the $60,000 that

Mr. Addonisio believed was required under a purported "operating agreement" of the

corporation.2 Mr. Mancini could not recall the total amount he had paid for his shares in

Villa Bellini, but he testified that he provided a $15,000 check, an unknown number of

"deposits," remodeling construction work for the restaurant, and that he then worked for

the restaurant as a chef and manager. All of this, Mr. Mancini stated, covered the




              2The   operating agreement Mr. Addonisio was referring to was a record of
Villa Bellini Ristorante, LLC's, which stopped operating in 2014 when Villa Bellini was
established.



                                           -4-
entirety of his required initial investment. Mr. Mancini was of the view that this was

verbally agreed to among Villa Bellini's shareholders. Although early corporate records

and tax returns reflected that Mr. Mancini was the president and a one-fourth owner of

Villa Bellini, the gentleman who prepared those early records3 testified that Mr. Mancini

had been his only source of financial information for the corporation at the time they

were made. He further recalled:

              Well, in the beginning I was trying to come up with the
              balance sheet to show the shareholders' contribution and I
              could see all the deposits being made from all the different
              shareholders, and I asked Mr. Mancini where his was and
              where they were, where they were coming from, and he
              mentioned that he gave – he paid with credit cards some
              expenses for – during the construction [of the restaurant],
              and then he gave liquor, wine – more wine to the company
              for his share.

                    And I also asked for proof of all that meaning
              statements from the credit card accounts, and inventory, and
              never got it. Actually, to this day I never saw any evidence.

As Mr. Mancini's counsel expressed in his concluding remarks to the trial court, "this

company was run very loosely. It wasn't run with the oversight it probably should have

[had]."

              The circuit court adjudicated the dispute over Mr. Mancini's ownership

from the evidence presented at the show cause hearing.4 In its order, the court found




              3The    individual was not a certified public accountant but rather an enrolled
agent credentialed by the Internal Revenue Service.
                4We recognize that the court attempted, in its remarks at the conclusion of

the show cause hearing, to leave open the possibility that Mr. Mancini might owe more
money for the purchase of his shares or, conversely, that he might be owed money from
Villa Bellini for providing labor and wine to the restaurant. However, the court's oral
pronouncement and subsequent written order leave no room to doubt that the court
made a factual determination that Mr. Mancini was and is a shareholder of Villa Bellini.

                                            -5-
that Villa Bellini had failed to show good cause why a writ of mandamus should not

issue. The court's order further elaborated, "based upon the evidence and law

presented, [Mr. Mancini] need not rebut that Mancini is not a shareholder, since it has

been demonstrated to the satisfaction of the conscience of this Court that he is and

always has been a shareholder of Respondent, [Villa Bellini]." Thus, by obtaining a writ

to allow an inspection of Villa Bellini's corporate books and records, Mr. Mancini also

obtained an adjudication that he was, in fact, a shareholder of Villa Bellini.

                                             II.

              The standard of our review of a circuit court's order on a mandamus

petition is somewhat multifaceted and depends, in part, upon how the lower court

disposed of the petition. If the circuit court dismissed the mandamus petition as facially

insufficient, we review the ruling de novo. See Anthony v. State, 

, 225

(Fla. 2d DCA 2019) (citing Asay v. State, 

, 22 (Fla. 2016)); Chandler v. City

of Greenacres, 

, 1083 (Fla. 4th DCA 2014) (citing Barnett v. Antonacci,

, 404 (Fla. 4th DCA 2013)). If the circuit court determined the petition

was facially sufficient and adjudicated it on the merits, as it did here, then we would

ordinarily review the ruling for an abuse of discretion. See Brown v. Jones, 

, 397 (Fla. 1st DCA 2017) (citing Rosado v. State, 

, 1148 (Fla. 4th

DCA 2009)); Bd. of Cty. Comm'rs Broward Cty. Fla. v. Parrish, 

, 417

(Fla. 4th DCA 2014). We afford that deferential review because the decision to grant

mandamus relief is discretionary, not absolute. See Topps v. State, 

,

1257 (Fla. 2004). To the extent that the circuit court's adjudication of a mandamus

petition turns on an issue of law, however, we would review that decision de novo. See




                                            -6-


(quoting Harvard ex rel. J.H. v. Village of Palm Springs, 

, 647 (Fla. 4th DCA 2012)).

              "In order to be entitled to a writ of mandamus the petitioner must have a

clear legal right to the requested relief, the respondent must have an indisputable legal

duty to perform the requested action, and the petitioner must have no other adequate

remedy available."5 Huffman v. State, 

, 11 (Fla. 2000); see also Radford

v. Brock, 

, 1067 (Fla. 2d DCA 2005) (quoting Smith v. State, 

, 815 (Fla. 2d DCA 1997)). Our court summarized the parameters of mandamus

proceedings in Radford:

              "When a trial court receives a petition for a writ of
              mandamus, its initial task is assessing the petition to
              determine whether it is facially sufficient. If it is not
              facially sufficient, the court may dismiss the petition."
              Davis v. State, 

, 1215 (Fla. 2d DCA
              2003) (citations omitted). If the petition is facially
              sufficient, the court must issue an alternative writ of
              mandamus requiring the respondent to show cause
              why the writ should not be issued. Moore v. Ake, 

, 698 (Fla. 2d DCA 1997); Conner v. Mid–
              Florida Growers, Inc., 

, 1256 (Fla. 2d
              DCA 1989). If the petition and answer to the
              alternative writ raise disputed factual issues, the trial
              court must resolve these issues upon evidence
              submitted by the 

.




              5There   is no question that if Mr. Mancini is a shareholder of Villa Bellini,
Villa Bellini has a clear and indisputable statutory duty to allow him to inspect its
corporate records in accordance with section 607.1602.



                                             -7-
              Now those who may be familiar with the arcana of mandamus

jurisprudence6 might think the use of a mandamus petition in a private business dispute

between private individuals is a bit—odd. And indeed it is. Cf. State ex rel. Glynn v.

McNayr, 

, 315-16 (Fla. 1961) (noting the "narrow confines of the

established restrictions on mandamus as a remedy to compel official action"); Conner v.

Moran, 44 Fla. L. Weekly D2052 (Fla. 1st DCA Aug. 9, 2019) ("The writ of mandamus is

available only to compel a non-discretionary ministerial duty by a public official where

the petitioner has no legal remedy to obtain the relief sought." (first citing Hatten v.

State, 

, 563 (Fla. 1990); and then citing Rhea v. Dist. Bd. of Trs. of Santa

Fe College, 

, 855 (Fla. 1st DCA 2013))); Kuehl v. Bradshaw, 

, 655 (Fla. 4th DCA 2007) ("Mandamus is proper to compel a public official to

perform a ministerial duty."); Sancho v. Joanos, 

, 385 (Fla. 1st DCA

1998) ("Mandamus issues to require the performance of a ministerial duty imposed by

law on a public official." (citing City of Coral Gables v. State ex rel. Worley, 

, 300 (Fla. 1950))). Our court once held that mandamus could not lie against a

former assistant public defender who later became a private practitioner for the very

reason that he "is a private citizen and not a government official." See Hall v. Liebling,

, 476 (Fla. 2d DCA 2004); see also Donahue v. Vaughn, 

,

357 (Fla. 5th DCA 1998) ("[M]andamus does not lie to require a private citizen,

appellee, to perform a ministerial duty required by law." (internal quotations omitted)).

Nevertheless, there is a long running vein in Florida law that recognizes mandamus



              6Cf.  Doe v. State, 

54, 170 (Fla. 2d DCA 2016) (Lucas, J.,
dissenting) (citing law review commentary and remarking that the origin and purpose of
the writ of mandamus remains "somewhat unobvious and unexamined").

                                             -8-
relief for shareholders in private corporations who wish to inspect their corporation's

books and records. See Fla. Military Acad., Inc. v. State ex rel. Moyer, 

, 4-5

(Fla. 1937) (affirming issuance of a writ of mandamus to authorize a shareholder to

inspect the books and records of a corporation); Soreno Hotel Co. v. State ex rel. Otis

Elevator Co., 

, 342 (Fla. 1932) (holding that a shareholder may seek a writ

of mandamus to compel a corporation to allow him access to its records). We are

compelled to follow this vein, though it seems difficult to reconcile within the larger body

of mandamus law.7



              7Courts      throughout the country have been divided on this issue for some
time. Compare Fla. Military Acad., 

(recognizing mandamus relief for a ten
percent shareholder to inspect his corporation's books and records); Feuer v. Merck &
Co., Inc., 

, 881 (N.J. Super. Ct. App. Div. 2018) (observing that the "right"
of shareholders to inspect corporate records under New Jersey's common law "was
historically secured by a writ of mandamus" but the issuance of the writ was "still subject
to the exercise of the court's discretion"); Treat v. Inhabitants of Middletown, 

, 246 (Conn. 1830) ("A mandamus lies to compel any person, corporation, or inferior
court to do a particular act, which they neglect."), with 

(holding
that mandamus could not lie against a private citizen); Am. Asylum v. Phoenix Bank, 

, 178 (Conn. 1822) (expressing doubt that mandamus would be available for
plaintiffs to subscribe to a charitable corporation's shares; "The writ of mandamus lies to
enforce the execution of an act . . . and, regularly, issues only in cases, relating to the
public and the government . . . . It never lies to restore to a private office, or to execute
a private right . . . ."); Shipley v. Mechanics' Bank, 

, 485 (N.Y. 1813) ("The
applicants have an adequate remedy, by a special action on the case, to recover the
value of the stock, if the bank have [sic] unduly refused to transfer it. There is no need
of the extraordinary remedy by mandamus, in so ordinary a case. . . . It is not a matter
of public concern, as in the case of public records and documents . . . .").
                It may be that a writ of mandamus is still appropriate to enforce certain
corporate ministerial duties because, as the Florida Supreme Court once explained, "[a]
corporation being the recipient of a franchise from the state, it and its officials are
subject to judicial control by means of the writ of mandamus." Soreno 

. One could argue, though, that the proliferation of corporate organizations over the
past century, the relative ease with which a corporate entity can now be created, and
the panoply of legal remedies available to shareholders in modern civil practice—
declaratory relief, injunctive relief, a direct action to apply for an expedited court order
under section 607.1604—render this extraordinary writ an ill-suited procedural relic for
this kind of private controversy.

                                            -9-
              That alone, however, does not resolve this appeal. While we are bound to

recognize the potential availability of mandamus relief for a corporate shareholder who

has been deprived of his or her statutory right to inspect a corporation's books and

records, we cannot ignore the legal boundaries that have been set for this extraordinary

writ's reach. Mandamus is available "only to enforce a right that is both clear and

certain." Fla. League of Cities v. Smith, 

, 400 (Fla. 1992). "Mandamus

may not be used to establish the existence of such a right, but only to enforce a right

already clearly and certainly established in the law." 

see also 

("The purpose of the remedy [of mandamus] is not to establish a legal

right. Its function is to enforce a right which has already been clearly established.").

The clarity and certainty required for mandamus relief ordinarily prevents the issuance

of a writ of mandamus in cases where there is an underlying substantive fact in dispute,

as Florida case law illustrates.

              For example, in Morse Diesel International, Inc. v. 2000 Island Boulevard,

Inc., 

(Fla. 3d DCA 1997), a condominium association (Williams Island)

that was in protracted litigation with a general contractor filed a separate petition for a

writ of mandamus to direct the clerk of the circuit court to disburse a cash bond that the

association had previously posted in connection with the litigation. The association

argued that the contractor's claim of lien on the underlying property had expired so that

the association was entitled to the return of its funds. 

The circuit court

issued the writ, but the appellate court reversed, holding that the association failed to

establish a clear legal right to mandamus "where the clerk's answer and affirmative

defenses created a genuine issue of fact about whether Morse Diesel's claim of lien had




                                            - 10 -
expired and/or been satisfied." 

"In granting the writ, we think that the court

improperly adjudicated rather than enforced an established right to these funds by

Williams Island." 

Immer v. City of Miami, 

(Fla. 3d DCA 2005),

the Third District affirmed a circuit court's denial of a petition for writ of mandamus

where the petitioner sought to direct the City of Miami to cancel a building permit that

had been issued to a homeowners' association.

              The petition and attachments reveal that there is a disputed
              factual issue in the case. In applying for the building permit,
              the Association swore that it was the owner of the land on
              which the proposed gatehouse was to be constructed.
              Immer asserts that he is a lot owner in the Moorings and an
              attorney specializing in real estate. He states that in his
              opinion the operative real estate documents make the lot
              owners (not the Association) the owners of the land on which
              the gatehouse is to be constructed.

                      Since there is a factual dispute regarding ownership
              of the property, mandamus is not an available remedy.
              "[R]elief cannot be afforded by mandamus where the right to
              which relator claims he clearly is entitled depends on the
              determination of controverted question of fact[]." State ex
              rel. Blatt v. Panelfab Int'l Corp., 

, 198 (Fla. 3d
              DCA 1975).

(alterations in original) (emphasis added).

              As Mr. Mancini acknowledged in the proceedings below, his status as a

shareholder was not only controverted, it was a preliminary factual issue the circuit court

had to decide in order to adjudicate the merits of his mandamus petition. But a

mandamus proceeding is not the appropriate mechanism to resolve that kind of factual

dispute. See L.B. Price Mercantile Co. v. Gay, 

, 89 (Fla. 1950) ("It is

seldom proper to resort to mandamus when determination of controverted questions of




                                            - 11 -
fact is necessary in an ascertainment of the rights of the parties."); 

; Morse 

; State ex rel. 

("[R]elief

cannot be afforded by mandamus where the right to which relator claims he clearly is

entitled depends on the determination of controverted questions of facts." (first citing

State ex rel. H.W. Metcalf Co. v. Martin, 

, 426 (Fla. 1908); and then citing

Sanitarians' Registration Bd. v. Solomon, 

, 749 (Fla. 1st DCA 1963),

quashed, 

(Fla. 1963))).

              The circuit court's convening a show cause hearing did nothing to rectify

this error. Contrary to Mr. Mancini's argument here and below, the mandamus show

cause hearing that we recognized in Radford was never meant to be a surrogate for a

trial on the merits over disputed, substantive factual issues concerning the ownership

interests in a private corporation.8 Rather, the show cause hearing must necessarily be

limited to the confines of what can be appropriately adjudicated in a mandamus

proceeding: that is, whether the petitioner has a clear legal right to the requested relief,

whether the respondent has an indisputable legal duty to perform the requested action,

and whether the petitioner has any other legal remedy. See 

;




              8The  only Florida case we have found where a court arguably recognized
that a mandamus proceeding could be utilized to determine a shareholder's ownership
interest was Farro v. Simplex Medical Systems, Inc., 

(Fla. 3d DCA
2000). The Third District's one-paragraph opinion in Farro reversed a circuit court's
denial of a mandamus petition because "contrary to the finding below, the evidence as
to the only disputed fact unequivocally establishes that Simplex, Inc. received the
required consideration for the issuance of the shares of stock which are now in
question." 

The Farro opinion neither mentioned nor addressed the legal
elements necessary to establish a right to mandamus relief, and so we do not find Farro
particularly persuasive on this issue. Instead, we think the better reasoned approach
would be to follow the law's general aversion to deciding disputed factual issues in
mandamus proceedings.

                                           - 12 -


. To hold otherwise, to extend the ambit of a show cause

hearing in a mandamus proceeding to the extent Mr. Mancini suggests, would expand

the reach of the writ beyond its historic demarcations.

              It would also radically alter the burden of persuasion in a disputed civil

controversy. As Villa Bellini points out, Mr. Mancini was the petitioner in the proceeding

below; and yet, it was Villa Bellini, the respondent, that bore the burden of persuasion at

the show cause hearing. Cf. Schaffer ex rel. Schaffer v. Weast, 

, 56 (2005)

("We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to

prove their claims." (citation omitted)); Arthur v. Unkart, 

, 122 (1877) ("The

burden of proof is upon the party holding the affirmative of the issue." (citing Johnson v.

Plowman, 

(N.Y. 1867))); Meneses v. City Furniture, 

, 73-74

(Fla. 1st DCA 2010) ("As a rule, the burden of persuasion is with the party who initiates

the proceeding, and remains with that party to establish the material elements of

recovery." (citing Smith's Bakery, Inc. v. Jernigan, 

, 521 (Fla. 1st DCA

1961))); see also 2 J. Strong, McCormick on Evidence § 337 (5th ed. 1999) ("The

burdens of pleading and proof with regard to most facts have been and should be

assigned to the plaintiff who generally seeks to change the present state of affairs and

who therefore naturally should be expected to bear the risk of failure of proof or

persuasion."). More than that, Villa Bellini's burden before the circuit court required it to

prove the proverbial negative that Mr. Mancini was not a shareholder. That is a

startlingly inverted way to resolve a factual controversy in a proceeding that is "seldom

proper" for resolving factual controversies. See 

.




                                            - 13 -
              We are also of the opinion that the limited factual inquiry a court

undertakes in a mandamus show cause hearing must align with another important

limitation of mandamus relief. A writ of mandamus is not available when the petitioner

has an adequate legal remedy. 

; see also Anthony, 

at 225 ("To be facially sufficient, a petition for writ of mandamus must also show the

petitioner has no adequate remedy at law." (citing 

)). If, as it

seems, Mr. Mancini, Villa Bellini, and Villa Bellini's shareholders were in doubt about Mr.

Mancini's status as a shareholder, chapter 86 of the Florida Statutes afforded them the

right to obtain a declaratory judgment to have that issue definitively resolved. See, e.g.,

Hyman v. Daoud, 

, 395 (Fla. 3d DCA 2016) (affirming circuit court's

declaratory judgment of the extent and nature of a corporation's ownership); Price v.

Rome, 

, 253 (Fla. 3d DCA 1969) (affirming declaratory judgment that

determined that plaintiff owned 40,000 shares of a corporation); cf. Telestrata, LLC v.

NetTALK.com, Inc., 

, 1350 (S.D. Fla. 2015) ("The question of

rightful ownership of securities is a proper case or controversy for resolution by a

[federal] declaratory judgment claim." (citing Linker v. Custom-Bilt Mach. Inc., 

, 901 (E.D. Pa. 1984))). By deciding Mr. Mancini's disputed status as a

shareholder of Villa Bellini, the circuit court erroneously crafted the legal remedy of a

declaratory judgment from a mandamus petition.

                                             III.

              We hold that the circuit court erred when it utilized a mandamus show

cause hearing to resolve the disputed fact of Mr. Mancini's ownership interest in Villa

Bellini. We further hold that that error was harmful. As we have already discussed,




                                           - 14 -
adjudicating the preliminary disputed factual issue of Mr. Mancini's share ownership in a

show cause hearing effectively switched the burden of persuasion that he, as a

petitioner or plaintiff, would have ordinarily had in a civil case. And the error allowed Mr.

Mancini to obtain a legal remedy—a judicial declaration that he is a shareholder—in a

proceeding that is supposed to be reserved for cases where no adequate legal remedy

is available.

                Mr. Mancini may very well have an ownership interest in Villa Bellini. In a

proper proceeding, he may end up proving what the circuit court determined in his

mandamus petition. All we hold today is that this kind of factual dispute is not one that

can be resolved in a mandamus show cause hearing. Accordingly, we reverse the

order below and remand this case for proceedings consistent with this opinion.

                Reversed and remanded.


SMITH, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur.




                                            - 15 -