BARBARA T. SUMMERLIN, AS EXECUTRIX OF THE ESTATE OF WILLIAM H. TINSMAN, DECEASED, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PETITIONERS,
v.
JOHN R. EPPS, RESPONDENT
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PER CURIAM.
The petition for writ of certiorari to review an order of the trial court denying petitioners’ motion for leave to file a counterclaim in a suit formerly cognizable at law is denied upon authority of the following decisions of this court: Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So. 2d 729 (Fla. 4th DCA 1975); Santini Brothers, Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976).
We fully recognize that the Third District Court of Appeal held to the contrary on almost identical facts in Romish v. Albo, 291 So. 2d 24 (Fla. 3d DCA 1974). But as the above cited decisions of this court pointed out, the kind of order now before us is reviewable on plenary appeal. If on plenary appeal reversible error is found to inhere in said order, petitioner would be entitled to litigate her proposed counterclaim. Surely under these circumstances where petitioner attempted to assert the counterclaim in this suit, the compulsory counterclaim rule would not militate against her. Petition for Writ of Certiorari DENIED.
CROSS and DOWNEY, JJ., concur. MAGER, C. J., dissents, with opinion.
MAGER, Chief Judge
(dissenting):
In my humble opinion the factual circumstances of this case fall squarely within the holding of Romish v. Albo, 291 So. 2d 24 (Fla. 3d DCA 1974). The decisions of this court, as cited in the majority opinion, are factually distinguishable and are therefore not controlling. The criteria for granting certiorari as set forth in the opinions of this court has been met. Allstate Insurance Company v. Gibbs, Fourth District Court of Appeal, Fla.App., 340 So. 2d 1202, 1976; Santini Brothers, Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976). Accordingly, certiorari should be granted with leave to the petitioners to file their counterclaim.
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Perimeter Invs., Inc. v. Amerifirst Dev. Co. OF Cent. Fla., Inc., 423 So. 2d 586 (Fla. 1st DCA 1982)…. Our jurisdiction to consider non-final orders is specifically limited by court rule. See Fla.R. App.P. 9.130(a)(3). The judges’ orders in this regard are susceptible of review on direct appeal from final judgment. See generally, Summerlin v. Epps, 340 So. 2d 1228 (Fla. 4th DCA 1976) and authorities cited therein. We do have jurisdiction, however, to consider the interlocutory orders denying the injunctions. Fla.R.App.P. 9.130(a)(3)(B). We affirm the orders denying injunctive relief because the appellants fa…
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Venus Labs., Inc. v. Katz, 573 So. 2d 993 (Fla. 3d DCA 1991)…3d DCA 1974), and join our sister courts to hold that cer-tiorari is not available to review an interlocutory order denying a motion to file an amended answer/counterclaim. Sciabbarrasi v. Uddo, 466 So. 2d 19 (Fla. 5th DCA 1985); Summerlin v. Epps, 340 So. 2d 1228 (Fla. 4th DCA 1976). “Certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” 2 Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 10…1 / 2
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R & J Broad. Corp. v. Se. First Nat'l Bank OF Miami, 378 So. 2d 1247 (Fla. 2d DCA 1979)…PER CURIAM. Certiorari denied. See Summerlin v. Epps, 340 So. 2d 1228 (Fla. 4th DCA 1976). GRIMES, C. J., and BOARDMAN and OTT, JJ., concur.…
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
- Humphrey v. Seminole Cnty. Court, 309 So. 2d 234 (Fla. 4th DCA 1975)
- Santini Bros., Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976)
- Allstate Ins. Co. v. Gibbs, 340 So. 2d 1202 (Fla. 4th DCA 1976)
- Solitron Devices, Inc. v. Reiland, 311 So. 2d 729 (Fla. 4th DCA 1975)
- Romish v. Albo, 291 So. 2d 24 (Fla. 3d DCA 1974)