VANCO CONSTRUCTION, INC., PETITIONER,
v.
NUCOR CORPORATION, RESPONDENT
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Vanco Construction, a third-party defendant, sought common law certiorari review of the trial court's order denying its motion for summary judgment in a contribution/indemnity action. The appellate court denied the petition, holding that orders denying summary judgment are not subject to interlocutory review and any injury from proceeding to trial is not irreparable harm.
The court held that orders denying summary judgment cannot be reviewed by common law certiorari because any alleged injury is not irreparable and can be adequately remedied after final judgment. The burden of proceeding to trial, even if ultimately determined to be erroneous, does not constitute material injury of an irreparable nature.
[1] An order denying a motion for summary judgment is not reviewable by interlocutory appeal.
[2] Common law certiorari is not available to review an order denying a motion for summary judgment when the alleged harm can be remedied after final judgment.
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Join FLexlaw to unlock all legal intelligence“even assuming the trial court's order to be a departure from the essential requirements of law (a point which we obviously do not decide) no injury appears which cannot be remedied after final judgment”
Establishes that even if the trial court erred, the error is not irreparable and can be corrected after trial
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Join FLexlaw to unlock all legal intelligenceVanco Construction is a third-party defendant in litigation where the third-party plaintiff seeks judgment against it for contribution and/or indemnit…
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ORFINGER, Judge.
This is a petition for a writ of common law certiorari to review an order of the trial court denying petitioner’s motion for summary judgment. An order denying a motion for summary judgment is not among those non-final orders which may be reviewed by interlocutory appeal pursuant to Rule 9.130, Fla.R.App.P. The question then is whether this Court should review such order by common law certiorari.
Petitioner is a third-party defendant in the trial court, wherein the third-party plaintiff seeks a judgment against it for contribution and/or indemnity. Petitioner urges in its petition here that without question the trial court departed from the essential requirements of law in denying its motion for summary judgment; that respondent cannot prevail on its third-party complaint and that petitioner will therefore suffer irreparable harm if it is required to proceed through a trial in order to prevail. Additionally, petitioner says that there will be a considerable saving of judicial time and effort if this Court terminates the third-party litigation now.
As appealing as this argument may be, for the reasons set forth in Praet v. Martinez, 367 So. 2d 657, (Fla. 3d DCA 1979) and Liebman v. Sportatorium, 374 So. 2d 1124 (Fla. 4th DCA 1979) the petition for certiorari must be denied. As stated in Liebman, supra, even assuming the trial court’s order to be a departure from the essential requirements of law (a point which we obviously do not decide) no injury appears which cannot be remedied after final judgment, and for all we know, if indeed it is error, the trial judge may correct it before or during trial.
If, as petitioner says, it may have to go through a needless trial, this burden has been repeatedly held not to constitute material injury of an irreparable nature. Liebman, supra; Santini Brothers, Inc., v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976). In Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975) Judge Downey eloquently states the reason for refusing to review interlocutory orders which can adequately be reviewed after final judgment, and the reasons expressed there are even more appropriate today.
Accordingly, the petition for writ of certiorari is denied.
COBB and UPCHURCH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (13 total)
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Paine v. Lucas, 411 So. 2d 1369 (Fla. 5th DCA 1982)…nd difficulty of an unnecessary court trial has been held to be an insufficient reason to justify the use of common law certiorari as a method of review of an otherwise non-ap-pealable, non-final order. Vanco Construction, Inc. v. Nucor Corporation, 378 So. 2d 116 (Fla. 5th DCA 1980). But, this general principle presupposes the existence of otherwise proper litigation. If the purpose of arbitration is to avoid litigation, permitting the parties to litigate at all where there is a right to arbitration complete…
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Tucker v. Resha, 610 So. 2d 460 (Fla. 1st DCA 1992)…Absent a showing of fundamental error or “exceptional circumstances,” certiorari is seldom granted to quash an interlocutory order. Crocker Construction Co. v. Hornsby, 562 So. 2d 842 (Fla. 4th DCA 1990); Boucher; Vanco Constr. Co. v. Nucor Corp., 378 So. 2d 116 (Fla. 5th DCA 1980). The Florida Supreme Court has ruled that a non-final order, like the present one not reviewable under Rule 9.130, is subject to review “only in limited circumstances.” See Savage; Hawaiian Inn of Daytona Beach, Inc. v. Snead Con…
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Maxwell Dauer and Reva B. Dauer v. Freed, 444 So. 2d 1012 (Fla. 3d DCA 1984)…teras v. Lliteras, 413 So. 2d 859 (Fla. 4th DCA 1982) (same); Habelow v. Travelers Insurance Co., 389 So. 2d 218 (Fla. 5th DCA 1980) (same); Peavy v. Parrish, 385 So. 2d 1034 (Fla. 4th DCA 1980) (same); Vaneo Construction, Inc. v. Nucor Corporation, 378 So. 2d 116 (Fla. 5th DCA 1980) (order denying defendant’s motion for summary judgment not appealable); State Farm Mutual Automobile Insurance Company v. Morris, 370 So. 2d 828 (Fla. 1st DCA 1979) (same). We next consider Freed’s motion to dismiss the appeal t…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Humphrey v. Seminole Cnty. Court, 309 So. 2d 234 (Fla. 4th DCA 1975)
- Santini Bros., Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976)
- Praet v. Martinez, 367 So. 2d 657 (Fla. 3d DCA 1979)
- Leibman v. Sportatorium, Inc., 374 So. 2d 1124 (Fla. 4th DCA 1979)