SAMUEL B. WITTEN ET AL., PETITIONERS,
v.
HOWARD VERNON LODGES AND RESTAURANTS, INC., A CORPORATION, RESPONDENT
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Petitioners sought certiorari review of an interlocutory trial court order denying their motion to strike an affirmative defense and their motion for partial summary judgment on liability. The appellate court denied the petition, holding that certiorari cannot be used to review interlocutory orders in law actions unless the court acted without jurisdiction or the order causes material injury that cannot be remedied by final appeal.
Certiorari review of interlocutory orders in law actions is available only when: (1) the order relates to venue or jurisdiction over the defendant, or (2) it clearly appears there is no full, adequate and complete remedy available by appeal after final judgment, such as when the court acts without or in excess of jurisdiction or the order does not conform to essential legal requirements and may cause material injury in subsequent proceedings. The challenged order does not fall within either category and therefore is not reviewable by certiorari.
“Appeal of interlocutory orders entered in actions at law prior to final judgment may be taken only from those relating to venue or jurisdiction over the person of the defendant.”
Establishes the narrow rule limiting what interlocutory orders can be appealed in law actions.
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Join FLexlaw to unlock all legal intelligencePetitioners are plaintiffs in a pending law action against respondent, a corporation. The trial court had previously granted a partial summary judgmen…
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Petitioners are plaintiffs in an action at law pending in the trial court, and respondent is defendant. Petitioners seek review by certiorari of an interlocutory order entered in that action which denied petitioners’ objections to and motion to strike respondent’s additional defense to count two of the amended complaint, and which denied petitioners’ motion for partial summary judgment as to the issue of liability with respect to said count two. The petition for certiorari alleges that it is based upon two grounds, to wit: firstly, that the *532additional affirmative defense to count two of the amended complaint which it sought to have stricken is without basis in law; and secondly, that the lower court had no right to recede from its former order granting a partial summary judgment on liability with respect to count two.
Appeal of interlocutory orders entered in actions at law prior to final judgment may be taken only from those relating to venue or jurisdiction over the person of the defendant.1 The order sought to be reviewed herein does not fall within that class of order for which review may be had by interlocutory appeal. It is basic that common law certiorari may not be used as a vehicle to circumvent the rule of law which narrowly restricts the class of orders entered in a law action which may properly be reviewed prior to the entry of final judgment in the case.
In the Pullman Company case this Court held that certiorari will be granted to review interlocutory orders entered in law actions prior to final judgment only in those cases in which it clearly appears there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where the trial court has acted without or in excess of its jurisdiction, or its order does not conform to the essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate.2 The order sought to be reviewed in the case sub judice does not fall within the class of orders for which review may be had by certiorari. The writ is accordingly denied and the petition dismissed.
CARROLL, DONALD K., Acting C. J., and RAWLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tucker v. Resha, 610 So. 2d 460 (Fla. 1st DCA 1992)…N: COMMON-LAW CERTIORARI We adhere to the maxim that common-law certiorari is not to be used to [*464] sidestep the rule of law narrowly restricting those non-final orders subject to review. See Witten v. Howard Vernon Lodges and Restaurants, Inc., 169 So. 2d 531, 532 (Fla. 1st DCA 1964); Marlowe v. Ferreira, 211 So. 2d 228 (Fla. 2d DCA 1968) (acknowledging discretionary nature of writ available “only in exceptional cases”). Rule 9.130(a)(1) provides that review of non-final orders other than those listed is…
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James M. Marlowe, M.D. v. Ferreira, 211 So. 2d 228 (Fla. 2d DCA 1968)…injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that an appellant court will exercise discretionary power to issue such writ.” And in Witten v. Howard Vernon Lodges & Restaurants, Inc., Fla.App. 1964, 169 So. 2d 531, the First District Court stated: “It is basic that common law certiorari may not be used as a vehicle to circumvent the rule of law which narrowly restricts the class of orders entered in a law action which may properly be reviewed prior to the en…
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Collier Lease Plan, Inc. v. Anne B. Mills, 219 So. 2d 456 (Fla. 1st DCA 1969)…PER CURIAM. Petition for writ of certiorari seeking review of the trial court’s order striking a defense interposed in petitioner’s answer in an action at law is denied on authority of Witten v. Howard Vernon Lodges and Restaurants, Inc., 169 So. 2d 531 (Fla.App. 1st 1964). WIGGINTON, C. J., and CARROLL, DONALD K., and SPECTOR, JJ., concur.…
Authorities Cited
- The Pullman Co. v. Fleishel, 101 So. 2d 188 (Fla. 1st DCA 1958)