BEVERLY ENTERPRISES-FLORIDA, INC., PETITIONER,
v.
CELIA MAE LANE, RESPONDENT
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Beverly Enterprises sought certiorari review of a trial court's order reinstating a nursing home negligence action that had been previously dismissed for failure to prosecute. The appellate court denied the petition, holding that an order denying a motion to dismiss for lack of prosecution is not reviewable by certiorari but may be challenged on plenary appeal from a final judgment.
An order denying a motion to dismiss for lack of prosecution is not reviewable by certiorari, and such issues may only be raised on plenary appeal from a final judgment. The inconvenience and expense of unnecessary litigation do not constitute the material harm or irreparable injury required for certiorari relief.
[1] An order denying a motion to dismiss for lack of prosecution is not reviewable by certiorari, but may be raised on plenary appeal.
[2] The inconvenience and expense of proceeding to trial after the denial of a motion to dismiss does not constitute material harm or irreparable injury justifying certiorari…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An order which denies a motion to dismiss for lack of prosecution is not reviewable by certiorari, but that issue can be raised on plenary appeal.”
Establishes the fundamental holding that certiorari is not the proper vehicle for reviewing such orders.
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Join FLexlaw to unlock all legal intelligenceBeverly Enterprises-Florida, Inc. was the defendant in a nursing home negligence action brought by Celia Mae Lane. The complaint was dismissed without…
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PLEUS, J.
Beverly Enterprises-Florida, Inc., the defendant in a nursing home negligence action, seeks certiorari review of a non-final order reinstating the underlying action. The complaint was dismissed without prejudice for failure to prosecute. See generally Fla. R. Civ. P. 1.420(e). The circuit court later reversed its ruling and reinstated the action.
By nullifying its earlier ruling and reinstating the action, the trial court effectively denied Beverly’s motion to dismiss for lack of prosecution. An order which denies a motion to dismiss for lack of prosecution is not reviewable by certiorari, but that issue can be raised on plenary appeal. See Lawrence v. Orange County, 404 So. 2d 421 (Fla. 5th DCA 1981); Bowl America Florida, Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980). The inconvenience and expense of proceeding to trial after the denial of a motion to dismiss does not constitute the type of material harm or irreparable injury for which certiorari relief is available.1 Unnecessary litigation will always be expensive and inconvenient, but the authorities are clear that such harm does not justify certiorari relief. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).
An order setting aside a dismissal of an action for failure to prosecute is a non-appealable, non-final order. See Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605 (Fla. 5th DCA 2002). Whether the trial court erred in reconsidering its earlier ruling and in reinstating the underlying action can likewise be raised on appeal from the final judgment. We therefore deny the petition without prejudice to raise these issues on a plenary appeal.
PETITION DENIED.
GRIFFIN and TORPY, JJ., concur. . Certain orders denying a motion to dismiss are reviewable by extraordinary writs, but the instant case does not involve any of these exceptions to the general rule. See, e.g., Sova Drugs, Inc. v. Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995) (recognizing certiorari as a remedy to review order denying motion to dismiss complaint for failure to comply with medical malpractice pre-suit requirements); Brogan v. Mullins, 452 So. 2d 940 (Fla. 5th DCA 1984), rev. denied, 464 So. 2d 555 (Fla.1985) (petition for writ of certiorari was treated as a petition for writ of prohibition to review order denying motion to dismiss that was based on statute of limitations defense).
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Yoanky DE LA OSA v. Wells Fargo Bank, N.A., 208 So. 3d 259 (Fla. 3d DCA 2016)…Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605, 606 (Fla. 5th DCA 2002) (recognizing the trial court could use Rule 1.530 to rehear a “final order dismissing [plaintiff's] case for failure to prosecute”); Beverly Enterprises-Florida, Inc. v. Lane, 855 So. 2d 1172 (Fla. 5th DCA 2003) (recognizing the trial court could rehear an order which "dismissed without prejudice for failure to prosecute”). . Not surprisingly, Florida Statutes often use the terms final "judgment,” "decree,” and “order" interchangeably f…
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Mariner Health Care v. Polly Y. Griffith, 898 So. 2d 982 (Fla. 5th DCA 2005)…incorrect interlocutory ruling does not constitute the kind of material harm or irreparable injury for which certiorari review is available. See, e.g., Zabawa v. Penna, 868 So. 2d 1292 (Fla. 5th DCA 2004); Beverly Enterprises-Florida, Inc. v. Lane, 855 So. 2d 1172, 1172-1173 (Fla. 5th DCA 2003); Royal Caribbean Cruises, Ltd. v. Sinclair, 808 So. 2d 231, 232 (Fla. 3d DCA 2001), rev. denied, 823 So. 2d 125 (Fla.2002). In Smithers v. Smithers, 743 So. 2d 605 (Fla. 4th DCA 1999), the court declined to grant cert…
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Keen v. Jennings, 327 So. 3d 435 (Fla. 5th DCA 2021)
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)
- Bowl Am. Fla., Inc. v. Schmidt, 386 So. 2d 1203 (Fla. 5th DCA 1980)
- Sova Drugs, Inc. v. Traiy Patrick Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995)
- Brogan v. Mullins, 452 So. 2d 940 (Fla. 5th DCA 1984)
- Lawrence v. Orange Cnty. & The Honorable Joseph P. Baker, 404 So. 2d 421 (Fla. 5th DCA 1981)
- Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605 (Fla. 5th DCA 2002)