GULF CITIES GAS CORPORATION, A CORPORATION, PETITIONER,
v.
RICHARD LEONARD CIHAK AND JUDITH ANN CIHAK, RESPONDENTS
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Gulf Cities Gas Corporation sought a writ of certiorari to overturn a trial court's denial of its motion to file a third-party complaint against Dennis Huibregtse, who allegedly caused an automobile accident. The court held that certiorari was not the proper remedy because the alleged procedural error was not fundamental, and petitioner had an adequate remedy of appeal.
Certiorari is not the proper remedy because the alleged procedural error is not fundamental error and the petitioner has an adequate remedy of appeal. The substantive question of whether third-party practice can be used to circumvent Florida's rule against contribution among joint tortfeasors must be resolved on appeal from final judgment.
“Certiorari is a discretionary writ issued only where the trial court acts without or in excess of jurisdiction, or where an interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury that cannot be corrected by the remedy of appeal.”
Establishes the standard for when certiorari is available as a remedy
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Join FLexlaw to unlock all legal intelligenceOn February 8, 1963, an automobile accident occurred involving a vehicle driven by Thomas Spears (acting as agent for Gulf Cities Gas Corporation) and…
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On or about November 4, 1965, Plaintiff s-Respondents Richard Leonard Cihak and Judith Ann Cihak filed their complaint, sounding in tort, in the Circuit Court for Hillsborough County, Florida. The complaint alleged that plaintiffs received personal injuries as a result of an automobile accident on February 8, 1963, when a car, driven by one Thomas Spears as agent of Defendant-Petitioner Gulf Cities Gas Corporation, was negligently caused to collide with a vehicle in which plaintiffs were riding.
Defendant filed its answer and defenses on February 16, 1966, denying plaintiffs’ allegations of negligence, pleading contributory negligence, and asserting the defense that one Dennis Huibregtse operated another motor vehicle in such a careless and negligent manner that his (Dennis Huibregtse) negligence solely caused the accident and the damages claimed by plaintiffs.
On August 8, 1966, almost six months after the filing of the answer, defendant filed a motion, pursuant to Rule 1.41, Fla. R.Civ.P., 30 F.S.A., for leave as third party plaintiff to serve a third party complaint upon Dennis Huibregtse on the ground that Dennis Huibregtse was liable for all or part of plaintiffs’ claim against defendant.
On August 15, 1966, plaintiffs filed objections to defendant’s motion for leave to serve a third party complaint, stating: that under no circumstances could a proper third party complaint be filed; that the fact that the third party “may be liable to the plaintiffs directly” is not grounds for allowing a third party complaint; and that the motion was taken for the purpose of delay.
On August 19, 1966, a hearing was held on defendant’s motion to join third party defendant, at which time the court denied defendant’s motion. Subsequently the defendant filed petition for writ of certiorari.
The first question for our determination here is whether certiorari is the proper remedy. Certiorari is a discretionary writ issued only where the trial court acts without or in excess of jurisdiction, or where an interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury that cannot be corrected by the remedy of appeal. When the alleged error is procedural, as in this case, the petitioner must demonstrate that the error is fundamental error. Non-fundamental errors of procedure cannot be the subject of a proceeding for writ of cer-tiorari even though the error might be reversible on appeal. American Employers’ Insurance Company v. Evanoff, Fla. *252App.1966, 181 So.2d 695; and Girten v. Bouvier, Fla.App.1963, 155 So.2d 745.
We do not feel that the error alleged here is fundamental error or that the trial court’s order will cause petitioner material injury. It should be noted that petitioner has an adequate remedy of appeal. However, it is questionable if the trial court’s order is in error since Florida does not allow contribution among joint tortfea-sors and it is doubtful if a party could get around this rule by the use of third party practice. But a determination of this question must be left for appeal, since the alleged error is not fundamental error.
The petition for writ of certiorari is denied without prejudice to petitioner’s raising the issue upon appeal from final judgment.
PIERCE and HOBSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995)…y order. A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. See Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250 (Fla. 2d DCA 1967).2 While this traditional test is correct, the grammar of the test places the description of the appellate court’s standard of review on the merits before the two threshold tests used to determine jurisdiction. [*649] Prior to 1939…1 / 2
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Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)…ertiorari and not on the lack of certiorari power. E.g., Basnet v. City of Jacksonville, 18 Fla. 523 (1882); State v. Williams, 237 So. 2d 69 (Fla. 2d DCA 1970); Marlowe v. Ferreira, 211 So. 2d 228 (Fla. 2d DCA 1968); Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250 (Fla. 2d DCA 1967). The majority opinion characterizes this Court’s decision in State v. G.P. as having held “that no right of review by certiorari exists if no right of appeal exists.” This is correct to the extent that it is understood to say tha…
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Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th DCA 1982)…Fla. R.App.P. Rather, we reach it also through our certiorari jurisdiction, concluding that the order constitutes a departure from the essential requirements of law and that appellant lacks an adequate remedy at law. Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250 (Fla. 2d DCA 1967). [*1050] In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of pr…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Girten v. Bouvier, 155 So. 2d 745 (Fla. 2d DCA 1963)
- Am. Emp'rs' Ins. Co. v. Evanoff, 181 So. 2d 695 (Fla. 2d DCA 1966)