D. BLAIR LEARN AND R. BRIAN LEARN, APPELLANTS,
v.
HOWARD L. SHACKELFORD, SR., HOWARD L. SHACKELFORD, JR., AND S AND S SURGICAL PRODUCTS, INC., APPELLEES

Fla. 2d DCA | 2005-06-10
No. 2D04-5168
SALCINES and LaROSE, JJ., Concur.
903 So. 2d 335 Florida District Court of Appeal, Second District (2005) Positive Treatment
Cited by 4 cases

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Synopsis

The Learns challenged a trial court order staying proceedings in their shareholder deadlock case and authorizing unilateral check-writing authority for Shackelford, Sr. The appellate court treated the appeal as a petition for writ of certiorari and dismissed it, finding the Learns failed to meet the heavy burden required for certiorari review.


Holding

The court dismissed the petition for writ of certiorari, holding that the Learns failed to meet the heavy burden of showing clear departure from essential legal requirements resulting in irreparable harm, since any errors could be remedied on direct appeal of the final judgment.


Headnotes

[1] An interlocutory order granting a motion to stay proceedings and protect corporate assets is generally not appealable as of right under Florida Rule of Appellate Procedur…

[2] Appellate courts may treat an improper interlocutory appeal as a petition for writ of certiorari.

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Key Quotes

“Common law writ of certiorari 'provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.'”

Establishes the stringent standard required for certiorari review

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Facts & Procedural History

The Learns and Shackelfords each owned fifty percent of a corporation and comprised its four-member board of directors, with Shackelford, Sr. as presi…

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

D. Blair Learn and R. Brian Learn (“the Learns”) challenge the trial court’s nonfi-nal order granting a motion to stay proceedings and protect corporate assets, which was filed by S and S Surgical Prod ucts, Inc. (“the Corporation”), in the Learns’ action for equitable relief against Howard L. Shackelford, Sr.; Howard L. Shackelford, Jr.; and the Corporation (collectively “Appellees”).

The Learns and the Shackelfords make up the four-member board of directors of the Corporation, and Shackelford, Sr., serves as president of the Corporation. The Learns own fifty percent of outstanding stock, and the Shackelfords own the other fifty percent. The Learns filed suit against Appellees, alleging that the board of directors had become deadlocked in the management of the Corporation and that Shackelford, Sr., had repeatedly acted without board approval in conducting the Corporation’s affairs. The Learns sought equitable relief, namely that the trial court appoint a provisional director and enjoin Shackelford, Sr., from acting without board approval. In response, the Corporation filed an election to force the Learns to sell their stock for fair value.

The Learns moved to strike the election and strike the appearance of the Corporation’s counsel because Shackelford, Sr., retained counsel without board approval. The trial court denied these motions and, although the Learns originally filed a notice of appeal of that denial, they subsequently voluntarily dismissed the appeal.

Appellees then moved both to stay the proceedings so that valuation of the Learns’ shares could be completed and to protect corporate assets by changing the Corporation’s check-writing protocol to allow Shackelford, Sr., to draw checks on his signature alone. The Learns now appeal the trial court’s omnibus order granting Appellees’ motions.

Initially, we note that the trial court’s order does not fall within the parameters of Florida Rule of Appellate Procedure 9.130(a)(3)(B). As such, we treat this appeal as a petition for writ of certiorari. See Paley v. Cocoa Masonry, Inc., 354 So. 2d 945, 946 (Fla. 2d DCA 1978) (“The stay order may not be reviewed by interlocutory appeal. But we choose to treat the appeal as a petition for certiorari.”) (citation omitted); see also Greene v. Cal. Fed. Bank, 658 So. 2d 1027 (Fla. 4th DCA 1995).

Common law writ of certiorari “provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla.2004). The Learns have not met that burden here. Even if the trial court departed from the essential requirements of law by ordering that the proceedings be stayed while the Learns’ stock is valued, the Learns will be able to remedy any error on appeal by challenging the valuation of their stock. Likewise, any damage the Learns may allege resulting from Shackelford, Sr.’s check-writing authority may be raised below and again on direct appeal if necessary.

Because the Learns have not alleged that the trial court’s action here has resulted in a material injury to them that cannot be remedied on appeal, we do not have certiorari jurisdiction. See id. We therefore dismiss the petition.

Dismissed.

SALCINES and LaROSE, JJ., Concur.


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Citator

Cited By

  • Urquiza v. Kendall Healthcare Grp., Ltd., 994 So. 2d 476 (Fla. 3d DCA 2008)
    …ion because the Gator defendants have not met their burden of demonstrating a clear departure from the essential requirements of law resulting in irreparable harm. See Reeves v. Fleetwood Homes, Inc., 889 So. 2d 812 (Fla.2004); Learn v. Shackelford, 903 So. 2d 335 (Fla. 2d DCA 2005); see also Greene v. Cal. Fed. Bank, 658 So. 2d 1027 (Fla. 4th DCA 1995); Fresh Del Monte Produce, N.V. v. Chiquita Int’l, Ltd., 664 So. 2d 263 (Fla. 3d DCA 1996) (Cope, J., concurring in part and dissenting in part). Kendall Hea…
  • Goodenow v. Nationstar Mortg., LLC, 305 So. 3d 13 (Fla. 3d DCA 2020)
    …nder Florida Rule of Appellate Procedure 9.130(a)(3)(B). See, e.g., Dep’t of Agric. & Consumer Servs. v. Patchen, 25 So. 3d 1283, 1284 (Fla. 3d DCA 2010). “As such, we treat this appeal as a petition for writ of certiorari.” Learn v. Shackelford, 903 So. 2d 335, 336 (Fla. 2d DCA 2005) (citations omitted). Certiorari review is available only when the petitioner has demonstrated “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3)…

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