GEORGIANA DOERSCHUCK, APPELLANT,
v.
WALTER J. DOERSCHUCK, JR., DECEASED, APPELLEE
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PER CURIAM.
We treat the appeal as a petition for certiorari and deny the petition.
LETTS and HURLEY, JJ., concur. GLICKSTEIN, J., concurs specially with opinion.
GLICKSTEIN, Judge,
concurring specialty-
This case involves a wife who petitioned for dissolution of her marriage. During the pendency of the dissolution proceedings, her husband died and she filed a suggestion of death and a motion to dismiss the petition. Thereafter the husband’s surviving children by another marriage moved to intervene in the divorce proceedings. Pursuant to the foregoing the trial judge denied the motion to dismiss without prejudice and granted the motion to intervene. This non-final appeal ensued.
The panel found no authority for the proposition that these two non-final orders are appealable; thus the consideration as a petition for certiorari.
There is no question that a trial judge has no option but to terminate a dissolution action upon the death of one of the parties. Messana v. Messana, 421 So. 2d 48 (Fla. 4th DCA 1982); Simpson v. Simpson, 473 So. 2d 299 (Fla. 3d DCA 1985); Jaris v. Tucker, 414 So. 2d 1164 (Fla. 3d DCA), appeal dismissed, 419 So. 2d 1198 (Fla.1982); Sahler v. Sahler, 154 Fla. 206, 17 So. 2d 105 (1944). Thus, the trial court erred in failing to dismiss the action. Sullivan v. Givens, 155 Fla. 445, 20 So. 2d 493 (1945).
The court may issue a writ of certiorari only when there is a departure from the essential requirement of the law and no adequate remedy on plenary appeal. Keehn v. Joseph C. Mackey & Company, 420 So. 2d 398 (Fla. 4th DCA 1982). In the present case, there was a departure from the essential requirements of law. However, there is a remedy available on plenary appeal, notwithstanding that the parties may be exposed to costly, lengthy and unnecessary litigation. Unfortunately, these reasons are not adequate to justify certiorari review. Bowl America Florida, Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980).
I write solely to point out that all this can be avoided if the trial judge will reconsider her denial of the motion to dismiss, which she can do for good reasons when her orders are not final. See Motorola Communications and Electronics, Inc. v. National Patient Aids, Inc., 427 So. 2d 1042, 1042 & n. 1 (Fla. 4th DCA 1983). Counsel in other cases should not anticipate similar suggestions in every case from this writer; but the tidal wave of litigation described by Judge Irving Kaufman in a speech which we quoted in Cherna v. Cherna, 427 So. 2d 395, 396 n. 2 (Fla. 4th DCA 1983), coupled with the obvious and needless error here, compels this expression by concurrence.
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Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987)…ss in Home Insurance Company of Illinois v. Sentry Insurance A Mutual Company, 461 So. 2d 1038 (Fla. 4th DCA 1985) and Canadian Home Insurance Company v. Norris, 471 So. 2d 217 (Fla. 4th DCA 1985). However, more recently in Doerschuck v. Doerschuck, 481 So. 2d 1317 (Fla. 4th DCA 1986), we reverted to the view expressed in Chalfonte and denied a petition for certiorari seeking review of an order denying a motion to dismiss. In his special concurrence in Doerschuck, Judge Glickstein said: There is no question t…1 / 2
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…erdeaux v. Eagle-Picher Industries, 575 So. 2d 1295 (Fla. 3d DCA 1990). . See e.g. Hartford Acc. and Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); Doerschuck v. Doerschuck, 481 So. 2d 1317 (Fla. 4th DCA 1986) (Glickstein, J., specially concurring).…
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In re Guardianship OF Margaret M. Anderson, 568 So. 2d 958 (Fla. 4th DCA 1990)…s for the appellate court to exercise its extraordinary writ jurisdiction. Hartford Acc. and Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); see also Doerschuck v. Doerschuck, 481 So. 2d 1317 (Fla. 4th DCA 1986) (Glickstein, J., specially concurring). We can see no reason why the remedy on plenary appeal is not adequate here under the standard of the foregoing cases. Thus, certiorari is unavailable in this case. We therefore dismiss th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meta A. Sahler v. Eli I. Sahler, 154 Fla. 206 (Fla. 1944)
- Bowl Am. Fla., Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980)
- Motorola Commc'ns & Elecs., Inc. v. Nat'l Patient Aids, Inc., 427 So. 2d 1042 (Fla. 4th DCA 1983)
- Cunningham v. Naples Cmty. Hosp., Inc., 414 So. 2d 1164 (Fla. 3d DCA 1982)
- Keehn v. Joseph C. MacKey & Co., 420 So. 2d 398 (Fla. 4th DCA 1982)
- Sullivan v. Givens, 155 Fla. 445 (Fla. 1945)
- Cherna v. Cherna, 427 So. 2d 395 (Fla. 4th DCA 1983)
- Simpson v. Simpson, 473 So. 2d 299 (Fla. 3d DCA 1985)
- Cora Messana v. Messana, 421 So. 2d 48 (Fla. 4th DCA 1982)
- Nationwide Mut. Fire Ins. Co. & Hubert James v. Schaefer, 421 So. 2d 48 (Fla. 4th DCA 1982)