EMILIO E. VALENZUELA, APPELLANT,
v.
JAIMIE J. VALENZUELA, APPELLEE
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Emilio Valenzuela appealed a non-final trial court order requiring him to pay an expert witness fee before deposition. The appellate court dismissed the appeal, finding the order was not appealable under Florida Rule of Appellate Procedure 9.130(a)(3) and could not be treated as a certiorari petition because an adequate remedy existed by plenary appeal.
The court held that the non-final order was not appealable under Florida Rule of Appellate Procedure 9.130(a)(3) and could not properly be treated as a certiorari petition because an adequate remedy existed through plenary appeal after final judgment. Therefore, the appeal was properly dismissed.
[1] An order directing a party to pay an expert witness fee prior to the expert's deposition is not an appealable non-final order under Florida Rule of Appellate Procedure 9.…
[2] An improperly filed appeal may be treated as a petition for writ of certiorari under Florida Rule of Appellate Procedure 9.040(c) if the proper remedy was sought.
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Join FLexlaw to unlock all legal intelligence“A petition for writ of certiorari is an extraordinary remedy to be granted only upon the showing of a departure from from the essential requirements of the law which causes material injury for which there is no adequate remedy by appeal.”
Establishes the stringent standard for certiorari relief and why the appellate court would not invoke it to review the non-final order.
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a non-final order directing Valenzuela to pay an expert witness fee prior to taking the expert's deposition. The trial court ha…
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ON MOTION FOR REHEARING AND ATTORNEYS’ FEES
GERSTEN, Judge.
Appellant seeks a rehearing on this court’s order to dismiss his non-final appeal. Appel-lee seeks attorneys’ fees based upon Florida Rule of Appellate Procedure 9.410. We deny the motions.
Appellant appealed a non-final order directing him to pay an expert witness fee prior to the taking of the expert’s deposition. We first determined that the appealed order was not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Next, we explored whether this improperly filed appeal could properly be reviewed as a petition for writ of certiorari, pursuant to our authority to treat a cause “as if the proper remedy had been sought.” Fla. R.App.P. 9.040(c); see Pridgen v. Board of County Comm’rs of Orange County, 389 So. 2d 259 (Fla. 5th DCA 1980), review denied, 397 So. 2d 777 (Fla.1981).
A petition for writ of certiorari is an extraordinary remedy to be granted only upon the showing of a departure from from the essential requirements of the law which causes material injury for which there is no adequate remedy by appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987). Here, the trial court did not depart from the essential requirements of the law. Florida Rule of Civil Procedure 1.390(c) provides that “[t]he court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree.”
" We also found that there was an adequate remedy by plenary appeal where, as here, movants were required to pay costs in compliance with a court order. See Malone v. Costin, 410 So. 2d 569 (Fla. 1st DCA 1982); Ford Motor Co. v. Edwards, 363 So. 2d 867 (Fla. 1st DCA 1978). Therefore, because we determined that the non-final order was not appealable and could not properly be treated as a petition for writ of certiorari, we dismissed the appeal.
For these same reasons, we deny the motion for rehearing. We also deny appellee’s motion for attorney’s fees as sanctions under Florida Rule of Appellate Procedure 9.410 because we do not find this appeal frivolous or in bad faith. See Dubowitz v. Century Village East, Inc., 381 So. 2d 252 (Fla. 4th DCA 1979).
Motion for rehearing denied; motion for attorney’s fees denied.
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Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67 (Fla. 1st DCA 2004)…. Seminole Kraft Corp., 583 So. 2d 361 (Fla. 1st DCA 1991). Given this objective, the courts have narrowly construed the scope of the rule so that it applies only to the orders it identifies as appealable orders. See, e.g., Valenzuela v. Valenzuela, 648 So. 2d 741 (Fla. 3d DCA 1994); Outboard Marine Corp. v. Huggins, 583 So. 2d 433 (Fla. 4th DCA 1991); Neilinger [*70] v. Baptist Hospital of Miami, Inc., 460 So. 2d 564 (Fla. 3d DCA 1984). The part of the rule at issue here, subdivision (a)(3)(C)(iv), authoriz…
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Miami-Dade Cnty. v. Reyes, 772 So. 2d 24 (Fla. 3d DCA 2000)…subject to the Administrative Procedure Act when no other method of review is provided.” Haines City Community Dev. v. Heggs, 658 So. 2d 523, 580 (Fla.1995); see also De Groot v. Sheffield, 95 So. 2d 912, 915-16 (Fla.1957); Valenzuela v. Valenzuela, 648 So. 2d 741 (Fla. 3d DCA 1994). Upon granting a writ of certiorari, a circuit court is limited in the scope of its review to three issues. The circuit court must determine if the administrative hearing afforded all participants procedural due process, whether t…
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Pruitt v. State, 682 So. 2d 629 (Fla. 3d DCA 1996)…. This snippet of testimony alone, clearly supports the sentence imposed by the trial court and, more importantly, demonstrates no departure from the essential requirements of law sufficient to grant certiorari review. See Valenzuela v. Valenzuela, 648 So. 2d 741 (Fla. 3d DCA 1994); Anderson By and Through Anderson v. Lore, 618 So. 2d 369 (Fla. 1st DCA 1993); American Southern Co. v. Tinter, Inc., 565 So. 2d 891 (Fla. 3d DCA 1990); S.Y. v. McMillan, 563 So. 2d 807 (Fla. 1st DCA 1990). Flowing logically to th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Malone v. Costin, 410 So. 2d 569 (Fla. 1st DCA 1982)
- Peckham v. Good Life Enters., Inc., 363 So. 2d 867 (Fla. 2d DCA 1978)
- Wiley Ulee Pridgen v. Bd. OF Cnty. Comm'rs OF Orange Cnty., 389 So. 2d 259 (Fla. 5th DCA 1980)
- Dubowitz v. Century Vill. E., Inc., 381 So. 2d 252 (Fla. 4th DCA 1979)