SEE SHELL
v.
FOULKES
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Fitzmartin Investments appealed from a trial court order vacating a judgment and sale, but the Ninth Judicial Circuit Court lacked jurisdiction to hear the appeal as a direct appeal from a non-final order. The court also denied the appeal when construed as a petition for writ of certiorari, finding no irreparable harm that could not be remedied on post-judgment appeal.
The court lacks jurisdiction to review the non-final order as a direct appeal. When construed as a petition for writ of certiorari, the petition is denied because the appellant failed to establish that the order would result in lasting material injury that cannot be corrected on post-judgment appeal.
[1] An appellate court lacks jurisdiction to review a non-final order unless a specific statute or rule provides for interlocutory appellate review.
[2] An improper appeal may be construed as a petition for a writ of certiorari.
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Join FLexlaw to unlock all legal intelligence“This Court determines that it does not have jurisdiction to consider Appellant's claims as an appeal from a non-final order.”
Establishes the threshold jurisdictional defect preventing appellate review
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Join FLexlaw to unlock all legal intelligenceFitzmartin Investments appealed from the trial court's 'Order Vacating Judgment and Sale and Granting Other Relief' entered July 20, 2017. The appella…
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PER CURIAM.
The Appellant, Fitzmartin Investments, appeals from the trial court’s “Order Vacating Judgment and Sale and Granting Other Relief” entered July 20, 2017. This Court determines that it does not have jurisdiction to consider Appellant’s claims as an appeal from a non-final order. See Shell v. Foulkes, 19 So. 3d 438 (Fla. 4th DCA 2009) (finding a lack of jurisdiction under the appellate rules and general law for circuit courts to review non-final orders). In response to this Court’s “Order Directing Appellant to Show Cause Why Appeal Should Not Be Dismissed for Lack of Jurisdiction,” Appellant submitted no general law as a basis for interlocutory appellate jurisdiction beyond the general jurisdictional statute of Fla. Stat. 26.012.
However, this court may construe an improper appeal as a petition for writ of certiorari. Fla. R. App. P. 9.040(c). In order to grant certiorari to review an interlocutory order the Appellant must establish three elements: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the reminder of the case (3) that cannot be correct on post-judgment appeal.” Citizens Property Ins. Corp. v. San Perdid Ass’n, Inc., 104 So. 3d 344, 351 (Fla. 2012). This analysis necessarily begins with the jurisdictional requirement that the last two elements (lasting material injury and no remedy via plenary appeal) are established. Id. We determine that this case involves no harm which could not be corrected in a postjudgment appeal.
Accordingly, petition for writ of certiorari is DENIED. In addition, Appellee has filed a number of Motions for Attorney Fees in connection with this appeal including a motion requesting fees under Fla. R. App. P. 9.400 on September 1, 2017, amended October 23, 2017, as well as three distinct Motions for Attorney fees as sanctions under Fla. R. App. P. 9.410 on September 19, 2017; September 25, 2017; and November 2, 2017. Each of these Motions for Attorney Fees is DENIED. DONE AND ORDERED in Orlando, Orange County, Florida this ___ day of ______ 2019.
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Citator
Authorities Cited
- Citizens Prop. Ins. Corp. v. SAN Perdido Ass'n, Inc., 104 So. 3d 344 (Fla. 2012)
- Shell v. Foulkes, 19 So. 3d 438 (Fla. 4th DCA 2009)