CAVALRY PORTFOLIO SERVICES, LLC; ANDREU, PALMA, LAVIN & SOLIS, PLLC; AND DESIREE M. LAVIN, ESQUIRE
v.
DOROTHY HODGES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court dismissed a petition for certiorari review of an order denying a motion to dismiss. The court found that petitioners failed to demonstrate irreparable harm, a prerequisite for certiorari jurisdiction, because they were not entitled to litigation immunity for a wrongful garnishment claim.
No, the appellate court does not have certiorari jurisdiction because petitioners failed to establish irreparable harm. Litigation immunity does not apply to a claim of wrongful garnishment, meaning the petitioners are not protected from having to defend the lawsuit, and any harm can be remedied on direct appeal.
[1] Litigation immunity does not bar an action for wrongful garnishment because such a tort parallels malicious prosecution, an established cause of action that cannot be eli…
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Join FLexlaw to unlock all legal intelligence“Certiorari is generally not available to review an order denying a motion to dismiss because the petitioner has a remedy available through direct appeal of the final judgment.”
Establishes the general rule that orders denying motions to dismiss are not immediately appealable via certiorari.
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Join FLexlaw to unlock all legal intelligencePetitioners served a writ of garnishment on Dorothy Hodges' employer, only to discover she was the wrong person. Hodges sued for wrongful garnishment,…
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PER CURIAM.
Cavalry Portfolio Services, LLC; Andreu, Palma, Lavin & Solis, PLLC; and Desiree Lavin (Petitioners), seek certiorari review of an order denying their motion to dismiss Respondent Dorothy Hodges’ lawsuit against them. She filed suit after Petitioners served a writ of garnishment on her employer, but then learned that she was the wrong Dorothy Hodges. Hodges sued for wrongful garnishment, negligence, and a statutory debt collection violation. Petitioners moved to dismiss Hodges’ complaint on grounds of litigation immunity, arguing they were immune from the lawsuit itself.
The trial court denied the motion and Petitioners now seek review of that order. Our threshold inquiry is whether we have certiorari jurisdiction; i.e., whether Petitioners have established irreparable harm. Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998) (“[I]t is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.”). “Certiorari is generally not available to review an order denying a motion to dismiss because the petitioner has a remedy available through direct appeal of the final judgment.” See Palazzi v. State, 307 So. 3d 998, 1001 (Fla. 1st DCA 2020).
But “[w]hen the trial court denies a motion to dismiss on immunity grounds, certiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless.” See James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014).
Petitioners cannot show irreparable harm because they are not entitled to immunity from Hodges’ claim of wrongful garnishment. See Debrincat v. Fisher, 217 So. 3d 68, 70–71 (Fla. 2017) (explaining that applying litigation immunity to bar action for malicious prosecution would “eviscerate this long-established cause of action”); see also Strickland v. Com. Loan Co. of Jacksonville, 158 So. 2d 814, 815 (Fla. 1st DCA 1963) (recognizing that action for wrongful garnishment parallels that for malicious prosecution); Barniv v. Banktrust, 579 F. App’x 719, 720 (11th Cir. 2014) (“Under Florida law, the tort of wrongful garnishment has the same elements as the tort of malicious prosecution.”) (citing Adams v. Whitfield, 290 So. 2d 49, 51 (Fla. 1974) (a malicious prosecution case)).
For this reason, we lack jurisdiction and dismiss the petition. DISMISSED.
ROWE, MAKAR, and KELSEY, JJ., concur. _____________________________
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jaye v. Royal Saxon, Inc, 720 So. 2d 214 (Fla. 1998)
- Debrincat v. Fischer, 217 So. 3d 68 (Fla. 2017)
- In re the use by the trial courts of the Standard Jury Instructions (Civil Cases), 290 So. 2d 49 (Fla. 1974)
- James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014)
- Sowerby v. Harry Steele et ux., 158 So. 2d 814 (Fla. 1st DCA 1963)