SALLY MALONE, APPELLANT,
v.
CECIL G. COSTIN, JR., AND WIFE MARGARET M. COSTIN AND THOMAS S. GIBSON, APPELLEES
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Sally Malone appealed an interlocutory order granting attorney's fees and costs against her on a motion to compel discovery. The Florida First District Court of Appeal held that the order was not properly appealable under interlocutory appeal rules and declined to grant common law certiorari relief because Malone had an adequate alternative remedy: complying with the order or proceeding to final judgment on a dismissal.
The court held that the interlocutory order is not reviewable under Rule 9.130 because it does not meet the standards for interlocutory appeal, and common law certiorari is unavailable because Malone has an adequate alternative remedy: paying and participating in discovery or declining to pay and appealing after a dismissal under Rule 1.420(b). The mere cost of compliance does not constitute inadequate remedy.
[1] An interlocutory order granting attorney's fees and costs on a motion to compel discovery is not a nonfinal order reviewable by interlocutory appeal.
[2] Common law writ of certiorari is an extraordinary remedy requiring a petitioner to demonstrate a clear departure from the essential requirements of law that will result i…
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Join FLexlaw to unlock all legal intelligence“the order of the lower court is not a nonfinal order which may be reviewed by an interlocutory appeal under rule 9.130, Florida Rules of Appellate Procedure, we hold that this appeal has been improvidently taken”
Establishes that the appeal was procedurally improper because the order does not qualify for interlocutory review
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Join FLexlaw to unlock all legal intelligenceIn a civil litigation matter, the lower court granted defendants' motion to compel discovery and assessed attorney's fees and costs against plaintiff …
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WIGGINTON, Judge.
This is an appeal of an interlocutory order of the lower court granting appellees, defendants below, attorney’s fees and costs on their motion to compel discovery. Because the order of the lower court is not a nonfinal order which may be reviewed by an interlocutory appeal under rule 9.130, Florida Rules of Appellate Procedure, we hold that this appeal has been improvidently taken. Moreover, although this Court may regard such an appeal as a petition for common law writ of certiorari, Hope v. City of Gainesville, 355 So. 2d 1172 (Fla.1977), we decline to do so.
The common law writ of certiorari provides a remedy only where the petitioner has met the heavy burden of showing that a clear departure from the essential requirements of law would otherwise result in irreparable harm. Because of this burden of proof, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since only the most urgent interlocutory orders are appealable under rule 9.130, Florida Rules of Appellate Procedure, there will be very few cases where common law certiorari will provide relief. See Committee Notes, Fla.R.App.P. 9.130; and also Taylor v. Board of Public Instruction of Duval County, 131 So. 2d 504 (Fla. 1st DCA 1961).
In Kilgore v. Bird, 149 Fla. 570, 6 So. 2d 541 (1942), the Florida Supreme Court held that interlocutory orders could be reviewed by common law writ of certiorari when no other adequate remedy would be offered by law. The court reasoned that an appeal would afford an inadequate remedy where discovery had been wrongfully granted. See also Boucher v. Pure Oil Co., 101 So. 2d 408 (Fla. 1st DCA 1957); Meiklejohn v. American Distributors, Inc., 210 So. 2d 259 (Fla. 1st DCA 1968); West Volusia Hospital Authority v. Williams, 308 So. 2d 634 (Fla. 1st DCA 1975).
Such is clearly not the situation here, albeit “petitioner,” Ms. Malone, is faced with a Hobson’s choice: pay and participate or decline and, if her action is dismissed under rule 1.420(b), Florida Rules of Civil Procedure, appeal after entry of final judgment. Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981). The mere fact that compliance with the court’s order will be costly is not, in and of itself, a ground for valid objection. Goodyear Tire & Rubber Co. v. Cooey, 359 So. 2d 1200 (Fla. 1st DCA 1978); Ford Motor Co. v. Edwards, 363 So. 2d 867 (Fla. 1st DCA 1978).
Accordingly, the petition for writ of certiorari is denied.
ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93 (Fla. 1st DCA 2003)…erlocutory appeal rule which authorizes appeal from only a few types of non-final orders.... A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances.”); Malone v. Costin, 410 So. 2d 569, 570 (Fla. 1st DCA 1982) (“It is anticipated that since only the most urgent interlocutory orders are appealable under rule 9.130 ..., there will be very few cases where common law certiorari will provide relief.”). Accordingly, the appeal is dismi…
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Jaimot v. Media Leasing Corp., 457 So. 2d 529 (Fla. 5th DCA 1984)…ught, is not in my view a sufficient showing of irreparable harm to justify granting common law certiorari in this case. I would deny the petition for writ of certiorari. . See Kilgore v. Bird, 149 Fla. 570, 6 So. 2d 541 (1942); Malone v. Costin, 410 So. 2d 569 (Fla. 1st DCA 1982).…
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Suburban Propane v. The Est. OF Ralph Pitcher, 564 So. 2d 1118 (Fla. 1st DCA 1990)…petitioner has met the heavy burden of showing the existence of a clear departure from the essential requirements of law which would otherwise result in irreparable harm, i.e., only when no other adequate remedy is offered by law. Malone v. Costin, 410 So. 2d 569 (Fla. 1st DCA 1982). Thus, we are instructed that we should issue the writ only when there has been a violation of a clearly established principle of law which results in a miscarriage of justice. Combs v. State, 436 So. 2d 93 (Fla.1983). Certiorari…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boucher v. The Pure OIL Co., 101 So. 2d 408 (Fla. 1st DCA 1957)
- Barnard Kilgore v. Bird, 150 Fla. 702 (Fla. 1942)
- Taylor v. Bd. OF Pub. Instruction OF Duval Cnty., 131 So. 2d 504 (Fla. 1st DCA 1961)
- D'Amato v. State, 308 So. 2d 634 (Fla. 1st DCA 1975)
- Goodyear Tire & Rubber Co. v. Cooey, 359 So. 2d 1200 (Fla. 1st DCA 1978)
- Meiklejohn v. Am. Distribs., Inc., 210 So. 2d 259 (Fla. 1st DCA 1968)
- Peckham v. Good Life Enters., Inc., 363 So. 2d 867 (Fla. 2d DCA 1978)
- Am. Cas. Co. OF Reading PA. v. Brim's Food, Inc., 402 So. 2d 532 (Fla. 3d DCA 1981)
- Powell v. Wingard, 402 So. 2d 532 (Fla. 5th DCA 1981)
- Norwood W. Hope v. City OF Gainesville, 355 So. 2d 1172 (Fla. 1977)