The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Posted by David Adelstein on December 25, 2014
Appeal, Standard of Review

Petitions for Writs of Certiorari

What is a petition for a writ of certiorari (or “cert,” for short)? A petition for a writ of cert is when a petitioner wants to appeal a non-final order (e.g., an interlocutory order that does not finally dispose of the dispute such as a final adverse judgment against the petitioner) issued by the trial court when there is no direct right to appeal that non-final order.

In order for an appellate court to entertain a petition for a writ of cert, the petitioner MUST establish that (a) the trial court departed from the essential requirements of the law and (b) this departure caused irreparable injury to the petitioner that cannot be remedied by a later appeal from a final judgment against the petitioner.   See Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000). This is a challenging burden or appellate standard of review for a petitioner to overcome which is why many petitions for writs of cert are denied by appellate courts. Indeed, the Florida Supreme Court explained:

“[C]ertiorari is an extraordinary remedy that should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders. For an appellate court to review a nonfinal order by petition for certiorari, the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.”

Belair, So.2d at 1166 (internal quotations and citations omitted).

For example, let’s say you were sued by another party (referred to as the plaintiff). Instead of answering the lawsuit (referred to as a complaint), you elect to move to dismiss a portion of the complaint or the entire complaint. The trial court denies the motion to dismiss meaning the plaintiff can still pursue these claims against you. This order denying the motion to dismiss is considered a non-final or interlocutory order without a direct or immediate right to appeal. Thus, in order to appeal, your basis (as a petitioner) is through a petition for a writ of cert where you need to establish that (a) the trial court departed from essential requirements of the law in denying the motion to dismiss and (it is a BIG and) that you are caused irreparable injury that cannot be remedied by a later appeal of a final judgment against you. See, e.g., Florida Fish and Wildlife Comm’n v. Pringle, 770 So.2d 696 (Fla. 1st DCA 2000) (denying petition for writ of cert of order denying motion to dismiss); Saddlebrook Resorts, Inc. v. Seminole Electric Supply Co., 426 So.2d 1310 (Fla. 2d DCA 1983) (denying petition for writ of cert of order denying motion to dismiss portion of complaint).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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