ZEINAB ABBAS
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Petitioner Zeinab Abbas sought certiorari review of a trial court's denial of her motion to strike portions of a foreclosure complaint as sham pleadings. The appellate court summarily denied the petition, holding that any error in the trial court's order could be corrected on direct appeal and that certiorari review was therefore inappropriate.
The court held that certiorari review is inappropriate because any error in the trial court's order denying the motion to strike can be readily corrected on direct appeal. Abbas remains free to counter the complained-of allegations with her own evidence at trial, and the inconvenience of litigation following an allegedly incorrect interlocutory ruling does not constitute irreparable injury warranting certiorari review.
[1] Certiorari is an extraordinary remedy that is not available to circumvent interlocutory appeal rules.
[2] Alleged errors in interlocutory orders that can be corrected on direct appeal do not warrant certiorari review.
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Join FLexlaw to unlock all legal intelligence“any error that might be present in the trial court's order may be readily corrected on direct appeal”
Establishes that the appropriate remedy for any error is direct appeal, not certiorari
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Join FLexlaw to unlock all legal intelligenceAbbas filed a motion to strike certain portions of a foreclosure complaint and its attachments as sham pleadings under Florida Rule of Civil Procedure…
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Before ROCHE, SCHREIBER, and BLECHMAN, J.J.
PER CURIAM.
Petitioner Zeinab Abbas timely seeks certiorari review of the trial court’s order, which denied her motion to strike as a sham pleading portions of the foreclosure complaint and its attachments. We summarily deny the petition. In the petition, Abbas asserts that the trial court’s order constitutes a departure from the essential requirements of law for purposes of certiorari because the trial court failed to follow the requirements of Florida Rule of Civil Procedure 1.150 by “ignoring the credible facts and evidence which support[] the motion to strike” and then failing to “determine the falsity of the pleading.” She then asserts that the court’s order causes her irreparable harm because she is “unable to assert and discuss the sham pleading throughout the trial,” and a “later determination could not change the irreparable harm and prejudice.” In the amended response to this Court’s show cause order, Abbas additionally urges that the harm caused by the trial court’s order cannot be later corrected on appeal because a reversal would be “inadequate” to correct the alleged error of subjecting her to the trial that her motion to strike was intended to prevent. Contrary to Abbas’s position, we determine that any error that might be present in the trial court’s order may be readily corrected on direct appeal. See Caruso v. Super Vision International, Inc., 845 So. 2d 947, 948 (Fla. 5th DCA 2003).
Therefore, we conclude that appellate review by certiorari at the present time is inappropriate. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (“Limited certiorari review is based upon the rationale that ‘piecemeal review of nonfinal trial court orders will impede the orderly administration of justice and serve only to delay and harass.’”) (quoting Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998)); Martin–Johnson, Inc. v. Savage, 509 So. 2d 1097, 1098 (Fla. 1987) (“[C]ommon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.”).
Abbas overlooks that even though the trial court denied her motion, she remains free to counter the complained-of allegations in the foreclosure complaint and attachments with her own evidence. Her argument that the court’s order wrongly subjects her to a trial on the foreclosure complaint is not a proper basis for certiorari. See, e.g., Mariner Health Care v. Griffith, 898 So. 2d 982, 984 (Fla. 5th DCA 2005) (“[T]he inconvenience and expense of litigation after an allegedly incorrect interlocutory ruling does not constitute the kind of material harm or irreparable injury for which certiorari review is available.”).
Accordingly, as in Caruso, we deny Abbas’s petition “without a determination on the merits, since any error can be corrected on direct appeal.” 845 So. 2d at 948. We also deny her motion for fees and costs. DENIED. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this _____ day of __________, 2019.
RENEE A. ROCHE
Presiding Circuit Judge
SCHREIBER and BLECHMAN, J.J., concur. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished on this _____ day of __________, 2019, to the following: Zeinab Abbas, 7320 Forest Hill Court, Winter Park, Florida 32792; Andrew David Tarr, Esquire, 18660 Collins Avenue, Suite 106, Sunny Isles Beach, Florida 33160.
Judicial Assistant
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Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Reeves v. Fleetwood Homes OF Fla., Inc., 889 So. 2d 812 (Fla. 2004)
- Jaye v. Royal Saxon, Inc, 720 So. 2d 214 (Fla. 1998)
- Mariner Health Care v. Polly Y. Griffith, 898 So. 2d 982 (Fla. 5th DCA 2005)
- Caruso v. Super Vision Int'l, Inc., 845 So. 2d 947 (Fla. 5th DCA 2003)