STEVEN K. SCHWARTZ, P.A.
v.
BANKS
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Attorney Steven K. Schwartz seeks relief from the trial court's failure to adjudicate his motion to withdraw as counsel for a guardianship respondent. The trial court cancelled the hearing on the withdrawal motion without entering any order. The appellate court grants Schwartz's petition by treating it as a mandamus petition and directing the trial court to timely adjudicate the motion, while withholding issuance of the formal writ.
Absent an order entered by the trial court, the appellate court lacks certiorari jurisdiction. However, the court exercises discretion under Florida Rule of Appellate Procedure 9.040(c) to treat the certiorari petition as a mandamus petition, grants the petition, and withholds issuance of the formal writ while directing the trial court to timely adjudicate the withdrawal motion.
[1] A district court may exercise discretion under Florida Rule of Appellate Procedure 9.040(c) to treat a certiorari petition as a mandamus petition to compel a trial court…
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Join FLexlaw to unlock all legal intelligenceSchwartz represented Miriam Banks as plenary guardian of Gerald Banks beginning in June 2018. On February 18, 2019, Schwartz filed a motion to withdra…
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SCALES, J.
In the guardianship proceedings below, petitioner Steven K. Schwartz, P.A. (“Schwartz”) has been representing respondent Miriam Banks in her capacity as plenary guardian of Gerald Banks since June of 2018. On February 18, 2019, Schwartz filed a motion in the lower court seeking to withdraw as counsel for Ms.
Banks, citing irreconcilable differences between them. The limited record before us reflects that Ms. Banks consented to the withdrawal. Schwartz set the withdrawal motion for hearing, but, according to Schwartz’s petition, the trial court’s judicial assistant cancelled the hearing. The trial court has not entered an order either cancelling the hearing or adjudicating Schwartz’s withdrawal motion.
Schwartz now seeks in this Court, via certiorari petition, some type of order “remand[ing] the case with directions to the trial court to enter the order of withdrawal.”
A district court may exercise certiorari jurisdiction only when the trial court causes a party irreparable harm by entering an order that departs from the essential requirements of law. Walgreen Co. v. Rubin, 229 So. 3d 418, 420-21 (Fla. 3d DCA 2017). Indeed, when a district court grants a certiorari petition, the only relief available is a quashing of the lower court’s order. See Broward Cty. v. G.B.V.
Int’l, Ltd., 787 So. 2d 838, 843-44 (Fla. 2001). In this instance, absent an order entered below, we lack certiorari jurisdiction to adjudicate Schwartz’s petition.
Nonetheless, pursuant to Florida Rule of Appellate Procedure 9.040(c), we exercise our discretion and treat Schwartz’s certiorari petition as a petition for a writ of mandamus. We grant the petition, but trusting that the trial court, in a timely manner, will adjudicate Schwartz’s motion to withdraw,1 we withhold issuance of the writ.
Petition for writ of certiorari treated as petition for writ of mandamus, and granted; issuance of formal writ withheld.
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Authorities Cited
- Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So. 2d 838 (Fla. 2001)
- Maqueira v. State, 229 So. 3d 418 (Fla. 3d DCA 2017)
- Walgreen Co. & Holiday CVS, LLC v. Rubin, 229 So. 3d 418 (Fla. 3d DCA 2017)