Third District Court of Appeal
State of Florida
Opinion filed November 19, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-550
Lower Tribunal No. 11-2797
________________
Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude
Kuhtreiber,
Petitioners,
vs.
Ulrike A. Zeilberger, Personal Representative, Ulrike A. Zeilberger,
Individually, Dr. Rudolf Zeilberger, and Buro Fur Genealogie,
Assignee,
Respondents.
A Writ of Certiorari for Miami-Dade County, Bernard S. Shapiro, Judge.
Law Offices of Robin Bresky, and Michele K. Feinzig (Boca Raton), for
petitioners.
David Howard Goldberg, P.L., and David Howard Goldberg, for respondent
Ulrike A. Zeilberger; Golden & Cowan, P.A., and Paul M. Cowan, for respondent
Dr. Rudolf Zeilberger; Lawrence W. Livoti, P.A., and Lawrence W. Livoti (Fort
Lauderdale), for respondent Buro Fur Genealogie.
Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
LOGUE, J.
Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude Kuhtreiber are
elderly residents of Austria who have filed a petition to be recognized as partial
heirs in the estate of the Rosina Hanko, which was probated in Miami-Dade
County, Florida. They assert that they are half-sisters of the deceased. The personal
representative of the estate has tried to depose them but to no avail. His attempts
have been frustrated allegedly because of the health and age of the claimants,
nuances in Austrian law, and other matters. After ruling on various motions filed
by the parties concerning the depositions, the trial court filed an interim order
stating (1) the claims of Stockinger and Haider cannot proceed because they are
unavailable to be deposed, (2) “at the appropriate time upon the filing of
appropriate motions undersigned [judge] will consider dismissal of those claims,”
and (3) Kuhtreiber will appear for deposition in Miami, Florida within 45 days.
Stockinger, Haider, and Kuhtreiber filed a petition for certiorari to quash this order.
We dismiss the petition for lack of jurisdiction to issue the writ.
There is a serious legal impediment to granting the writ in this case:
Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at
this stage of the proceeding. The power of district courts of appeal to review a non-
final order like this by certiorari is strictly circumscribed. Fla. R. App. P.
9.030(b)(2)(A). As the Florida Supreme Court recently explained in Citizens
2
Property Insurance Corp. v. San Perdido Association, Inc., 104 So. 3d 344, 351-52
(Fla. 2012), “[v]ery few categories of non-final orders qualify for the use of a writ
of certiorari.” Certiorari review of non-final orders is a narrow remedy to be used
in extraordinary circumstances. Certiorari is not a general license for appellate
courts to closely supervise the day-to-day decision making of trial courts.
To invoke this court’s power to issue a writ of certiorari, a petitioner for the
writ must show that the challenged non-final order (1) departs from the essential
requirements of law, (2) results in material injury for the remainder of the case, and
(3) such injury is incapable of correction on postjudgment appeal. Id. at 351. These
last two elements are sometimes referred to as irreparable harm. Nader v. Fla.
Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).
The establishment of irreparable harm is a condition precedent to invoking
certiorari jurisdiction. Miami-Dade Cnty. v. Dade Cnty. Police Benevolent
Association, 103 So. 3d 236, 238 (Fla. 3d DCA 2012). As explained by this court:
If the party seeking review does not demonstrate that it will suffer
material injury of an irreparable nature, then an appellate court may
not grant certiorari relief from a non-appealable non-final order.
Similarly, if the alleged harm can be remedied on appeal, the harm is
not considered irreparable, and thus certiorari relief is not merited.
Id. (citation omitted). Thus, at the outset, Stockinger, Haider, and Kuhtreiber must
establish that the order at issue inflicts a material injury that cannot be corrected on
appeal.
3
The order we are asked to review admittedly sends a strong signal to
Stockinger, Haider, and Kuhtreiber: it puts them on notice that their cases might be
dismissed. But the operative word is “might.” The order actually resolves with
finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses
nothing, and sanctions no one. In fact, the second part merely states, “at the
appropriate time upon the filing of appropriate motions undersigned [judge] will
consider dismissal of those claims.” If the claims are ever dismissed, then, at the
appropriate time upon an appropriate appeal from a final order, this court could
review the matter. But at this point in time, nothing concrete has occurred.
When read in the normal context of ongoing litigation, the order merely
reflects the trial judge’s threat or admonishment to the parties—which is a method
available to him to try to break the discovery gridlock. We should wait and see
what results. Seasoned and respected trial judges, like the trial judge in this case,
can be trusted to manage this type of common discovery dispute. The trial judge
has done it before, and will undoubtedly do it faster, cheaper, and fairer without
our interference. It is premature for an appellate court to intervene.
In fact, Stockinger, Haider, and Kuhtreiber do not claim irreparable harm is
imminent. Instead, they posit that irreparable harm may occur if (1) Stockinger,
Haider, and Kuhtreiber are not deposed, (2) the trial court follows through on its
threat to dismiss their cases, (3) after their claims are dismissed, a Connecticut
4
Court considering a related probate immediately distributes certain assets that it
controls without waiting for any appeals of the Miami-Dade dismissals to be
resolved, (4) in the meantime, Stockinger, Haider, and Kuhtreiber file an appeal of
the dismissal, prevail on the appeal, and ultimately win in the underlying probate
matter, and (5) the assets distributed by the Connecticut court cannot be recovered.
Note that each of the steps is contingent on the preceding step. If even one event
does not occur, the proffered harm does not happen. Of course, these steps might
occur. But the critical point is that these steps might not occur. We simply do not
know.
At this point in time, Petitioners’ contention that they might be irreparably
harmed is based on conjecture. Such speculation and surmise are too attenuated to
establish irreparable harm and, as a result, this court is without jurisdiction to issue
the writ.
Dismissed.
5
Stockinger v. Zeilberger
Case No. 3D14-550
SUAREZ, J. (specially concurring).
I write only to explain my reason for concurring in this case. To state that
the facts underlying the case and, in particular, the order on appeal, are unusual, is
an understatement. We are faced right now with an order from the trial court in
which the trial court has stated that it MAY dismiss the case brought by Petitioners
should they not appear for deposition. Do we think that the trial court will go
through with the “sanction” it has stated in the order should the relatives not
appear, in a word, yes. But, as all lawyers and judges know, the trial court may
find another way to get a case moving along other than to follow through on what
it has stated might occur. Additionally, in order not to be dismissed from this case
and face appeal, the Petitioners may arrive at an amicable way to resolve the
deposition issue.
In other words, although the trial court MAY dismiss the Petitioners, it has
not done so nor did it state that it WOULD do so, only that it MAY do so. As
such, no irreparable harm has occurred at this point. Petitions for Certiorari are
sparingly granted on discovery issues. There must be irreparable harm and, as
none has been suffered at this point, we would be second guessing the trial court
and improperly entering into the discovery fray were we to grant this petition. It is
6
not within our authority to attempt to prophesize the outcome. Ours is to wait, and
rule only if there is irreparable harm or if a final appeal is eventually brought.
SUAREZ, J., concurs.
7
Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude Kuhtreiber v. Ulrike
A. Zeilberger, Personal Representative, Ulrike A. Zeilberger, Individually, Dr.
Rudolf Zeilberger, and Buro Fur Genealogie, Assignee
Case No. 3D14-550
ROTHENBERG, J. (dissenting).
Anna Hammerschmid Stockinger (“Stockinger”), Elsa Haider (“Haider”),
and Gertrude Kuhtreiber (“Kuhtreiber”) (collectively, “the Petitioners”) seek
certiorari review of the trial court’s order (“Order”) finding that Stockinger’s and
Haider’s claims cannot proceed because they are medically incapable of
traveling from Austria to Miami for depositions and that Kuhtreiber, who the
trial court found was medically able to travel, must appear in Miami for
depositions within forty-five days if she wishes to proceed on her claim. Because
the Order departs from the essential requirements of law and because I disagree
with the majority that irreparable harm has not yet occurred, I respectfully dissent
from the majority opinion dismissing the petition.
The underlying probate action followed the death of Rosina Hanko (“the
Decedent”), who died in Miami, Florida, leaving approximately $925,000 in three
bank accounts—$850,000 in a USB Investment account located in Connecticut,
$19,000 in a Bank of America account, and $56,000 in an Apple Bank account. In
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addition to the underlying Miami-Dade probate action, two other probate actions
followed in Austria and Connecticut.
The action in Miami-Dade County was initiated by the Decedent’s niece,
Ulrike A. Zeilberger (“Ulrike” or “Personal Representative”), in July 2011. In the
Amended Petition for Administration, Ulrike alleged that the Decedent died
intestate while domiciled in Miami and that the known “beneficiaries” are herself
and the Decedent’s nephew, Rudolf Zeilberger (“Rudolf”). In December 2011, the
probate court issued letters of administration appointing Ulrike as personal
representative and directing that all funds be placed into the court depository. In
March 2012, the Petitioners, who all reside in Austria, filed a Petition for
Determination of Heirs, asserting that they are the Decedent’s half-sisters,1 and
therefore, pursuant to section 732.103, Florida Statutes (2011),2 they are each
entitled to 25% of the Decedent’s intestate estate, while Ulrike and Rudolf are each
1 The Petitioners assert that they share the same father, but have different mothers.
2 Section 732.103 provides, in relevant part, as follows:
Share of other heirs.—The part of the intestate estate not passing to
the surviving spouse under s. 732.102, or the entire intestate estate if
there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and
mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers
and sisters and the descendants of deceased brothers and sisters.
....
It appears that the Decedent was not married and never had children.
9
entitled to only 12.5% of the Decedent’s estate.
Although Ulrike and Rudolf filed a probate action claiming the Decedent
died intestate, they produced a holographic will in a later-filed action in Austria,
and the Austrian court declared that the Decedent’s holographic will naming Ulrike
and Rudolf as sole equal beneficiaries was valid under Austrian law.3 The
Austrian court, however, rejected jurisdiction over “movable assets located
abroad,” including the three bank accounts at issue in this case.
Rudolf then filed an ancillary probate action in Stamford, Connecticut,
where the UBS Investment account is located. Rudolf did not serve the Petitioners
with notice of this action, and he did not notify the Connecticut court that the
Petitioners have claimed an interest in the Decedent’s estate as heirs in the Miami-
Dade action. The Connecticut court entered a decree granting ancillary probate of
the holographic will, finding that the Austrian court admitted the holographic will
to probate. However, the Connecticut decree provides: “No withdrawals of
principal or interest shall be made from any restricted account without written
approval from the Stamford Probate Court.”
Thereafter, in August 2012, Rudolf filed a motion to dismiss the Miami-
3 As translated, the holographic will provides that the Decedent bequeathed her
entire estate to her “sister,” Anni Zeilberger, and after Anni’s death, to Anni’s
children, Ulrike and Rudolf. Based on the record before this Court, it appears that
Anni is the Decedent’s half-sister, as they share the same mother, but not the same
father.
10
Dade probate action for improper venue or, in the alternative, to convert it to an
ancillary administration, which informed the Miami-Dade probate court of the
Austrian court’s decree and stated that the Connecticut court’s decree had become
final on July 31, 2012. The motion asserted that venue is improper in Miami-Dade
County because the Decedent was not domiciled in Miami-Dade County and the
majority of her assets are not located in Miami-Dade County, and that venue is
proper in Connecticut because the majority of her assets, including the USB
account, are located in Connecticut. This motion is currently pending before the
Miami-Dade probate court.
The parties began conducting discovery in preparation for the Miami-Dade
probate action, and the Personal Representative noticed the Petitioners for
depositions in Miami. In response, the Petitioners filed a verified motion for
protective order (“First MPO”) based on the burdensome expense of traveling from
Austria to Miami and on the Petitioners’ ages—Kuhtreiber was 62 years old,
Stockinger was 75 years old, and Haider was 80 years old. The motion also
asserted that, although the Petitioners have never met the Decedent and have never
had any contact with the Decedent, in 1957, Haider read a letter that her father had
received from the Decedent informing him that she had married and was residing
in the United States. The Petitioners further asserted that they have no other
relevant information to provide except for their “document-driven” proof of their
11
familial relationship to the Decedent, and therefore, there are less burdensome
available alternatives to taking their depositions in Miami (e.g., interrogatories,
demands for production, depositions by video link).
At the hearing on the First MPO, when determining whether a protective
order was warranted, when the trial court noted that there were no allegations that
any of the Petitioners were ill, Ulrike’s counsel responded that if the Petitioners’
physicians opined that they were unable to travel to Miami for their depositions, he
would “go to plan B.” The trial court denied the First MPO and ordered the
Petitioners to appear in Miami-Dade County within 90 days for depositions.
Thereafter, the Petitioners served a second verified motion for protective
order (“Second MPO”) stating that they cannot safely travel to Miami due to
“bona-fide medical reasons.” In support, the Petitioners submitted letters from
their physicians stating, under penalty of perjury, that the Petitioners cannot travel
by air for various medical reasons—Haider has primary cardiac disease;
Kuhtreiber suffers from post-traumatic stress syndrome and claustrophobia; and
Stockinger has undergone several ear surgeries and suffers from hearing loss. The
Second MPO also restated the Petitioners’ arguments regarding the expense of
travel, the superfluous nature of the depositions given the “document-driven”
nature of the dispute, and the availability of less burdensome means of obtaining
the necessary information. In response, Ulrike served a motion to compel the
12
Petitioners’ attendance for deposition and for sanctions.
Following a hearing, the trial court entered an order granting, in part, the
Second MPO. The trial court specifically found that Stockinger and Haider are
medically prohibited from traveling by air, but that Kuhtreiber failed to support
her claim that she cannot travel by air. The trial court also found that
telephonic/video depositions are not practical because using a translator would be
overly burdensome, questioning the Petitioners about documents is logistically
impossible, and Stockinger’s severe hearing loss would preclude electronic
communications between herself and the attorney deposing her. Based on these
findings, the trial court granted the Second MPO as to Stockinger and Haider,
ruling that they would be responsible for paying the Personal Representative’s
counsel’s travel expenses to Austria, which include coach airfare, accommodations
at a three-star hotel, meals, and incidentals. The trial court denied the Second
MPO as to Kuhtreiber, but gave her the option of either sharing in the Personal
Representative’s travel expenses and being deposed in Austria or traveling to
Miami for her deposition. The trial court ordered that the depositions be
completed within 60 days.
On November 6, 2013, counsel for the Personal Representative, Mr.
Goldberg, requested that the Petitioners “Please hold Thursday, December 5th and
Friday, December 6th for depositions.” The Petitioners offered to assist in locating
13
a court reporter and a translator, agreed to meet Mr. Goldberg in Vienna to reduce
his travel time, and confirmed their availability and desire to proceed. However,
instead of booking his flight, and despite the clarity of the trial court’s order, Mr.
Goldberg demanded travel expenses for three individuals—himself, a court
reporter, and a notary—and he also demanded that the estimated costs for their
travel, $5,266.06, be paid in advance.
Understandably upset by Mr. Goldberg’s deviations from the trial court’s
order, the Petitioners refused, absent a court order, to pay the travel expenses for
the court reporter and to submit advance payment for these additional expenses.
The Petitioners, however, notified Mr. Goldberg that the funds for his travel
expenses had already been placed in their Florida counsel’s trust account in
accordance with the trial court’s order.
In response, on December 2, 2013, Mr. Goldberg served an Emergency
Motion for an Order to Show Cause and for Extension of Time within which to
take the depositions of the Petitioners and seeking prepayment of the travel
expenses for himself, a court reporter and a notary. Buro Fur Genealogie4 filed a
response to this motion, asserting that the trial court’s order indicated that the
travel expenses would only be for the Personal Representative’s counsel and that
4 Buro Fur Genealogie is an heir-finding company. The Petitioners have
apparently assigned a portion of their claimed interest in the Decedent’s estate to
Buro Fur Genealogie.
14
the order did not require prepayment of these expenses.
Rather than simply ruling on Mr. Goldberg’s motion and resolving the issue
of how many individual’s expenses were to be borne by the Petitioners and how
payment was to be made, the trial court extended the time to take the depositions,
reopened the litigation on whether the depositions should be taken in Austria, and
ordered the parties to submit memoranda regarding the requirements for taking
depositions in Austria. Thus, what should have been a simple issue to resolve
morphed into a complicated analysis of Austrian law.
Ulrike contended that the Austrian Ministry of Foreign Affairs must first
grant permission to take discovery, and if permission is granted, the depositions
would be conducted by a local judge who may allow the American attorney’s
presence; but if the American attorney is allowed to attend, he may not pose any
questions. In contrast, the Petitioners claimed that the Austrian Ministry of Justice
usually approves such requests and that many American attorneys have conducted
depositions in Austria pursuant to United States procedural law. Neither party,
however, addressed whether the above requirements even apply when all parties
consent to the taking of depositions.
After conducting a hearing, and apparently abandoning the scope of the
expenses it had previously ordered, the trial court entered its Order finding that,
based on the parties’ memoranda, “it is abundantly clear that the process to be
15
followed is complex, time consuming and expensive with their being no guarantee
that required governmental approval from Austria would be forthcoming,” and
even if the Austrian government granted permission, the “deposition would be
taken in all likelihood by an Austrian Judge, not attorney Goldberg, and in all
probability outside the presence of Attorney Goldberg.” Thus, the trial court found
that this procedure was “unacceptable” and ordered that Stockinger’s and
Haider’s claims “may not proceed due to their unavailability to appear for the
taking of their depositions,” and that “upon the filing of appropriate Motions,”
the trial court “will consider dismissal of those claims.” As to Kuhtreiber, the trial
court ruled that she is capable of traveling to Miami, and “should she wish to
proceed herein she shall appear for the taking of same within 45 days.” This
petition for writ of certiorari followed.
In seeking certiorari relief, the Petitioners must demonstrate that the trial
court’s Order “depart[s] from the essential requirements of law, resulting in
irreparable harm that cannot be adequately remedied on final appeal.” Millennium
Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So. 3d 1086,
1089 (Fla. 3d DCA 2013); see also Reeves v. Fleetwood Homes of Fla., Inc., 889
So. 2d 812, 822 (Fla. 2004) (“It is well settled that to obtain a writ of certiorari,
there must exist ‘(1) a departure from the essential requirements of the law, (2)
resulting in material injury for the remainder of the case (3) that cannot be
16
corrected on postjudgment appeal.’” (quoting Bd. of Regents v. Snyder, 826 So. 2d
382, 387 (Fla. 2d DCA 2002))); Miccosukee Tribe of Indians v. Lehtinen, 114 So.
3d 329, 331 (Fla. 3d DCA 2013) (“A common law writ of certiorari is proper and
will be granted when a trial court’s determination constitutes a clear departure
from the essential requirements of the law resulting in material injury for the
remainder of the case that cannot be properly remedied on post-judgment
appeal.”). “Material injury and irreparable harm are ‘jurisdictional prerequisites to
certiorari relief.’” Millennium Diagnostic Imaging Ctr., 129 So. 3d at 1089
(quoting Nucci v. Nucci, 987 So. 2d 135, 139 (Fla. 2d DCA 2008)); see also
Poston v. Wiggins, 112 So. 3d 783, 785 (Fla. 1st DCA 2013) (holding that in
ruling on a petition for writ of certiorari, the reviewing court “must first conduct a
jurisdictional analysis to determine whether the petitioner had made a prima facie
showing of irreparable harm”); Jackson v. Computer Sci. Raytheon, 36 So. 3d 754,
756 (Fla. 1st DCA 2010) (“Certiorari jurisdiction does not arise unless the court
first establishes irreparable harm.”).
The trial court’s Order constitutes a departure from the essential
requirements of law. The trial court’s Order precludes Haider and Stockinger from
proceeding on their claims unless they appear for depositions in Miami despite a
finding by the trial court that they are medically incapable of traveling to Miami.
As to Kuhtreiber, the trial court determined that Kuhtreiber is capable of traveling
17
from Austria to Miami despite Kuhtreiber’s physician’s unrebutted orders that
“air travel, particularly on long-haul flights, is strongly discouraged!” due to
Kuhtreiber’s post-traumatic stress syndrome and claustrophobia. Nonetheless, the
trial court ruled that “should [Kuhtreiber] wish to proceed herein she shall appear
for the taking of same within 45 days.” Therefore, if this Court does not quash the
Order, Kuhtreiber will be faced with a very difficult decision: risk traveling to
Miami against the advice of her physician or have her claim dismissed; and Haider
and Stockinger will effectively be shut out of the litigation regardless of whether
the trial court actually dismisses their claims.
Although a trial court has discretion to impose sanctions for discovery
violations, see Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) (“It is well settled
that determining sanctions for discovery violations is committed to the discretion
of the trial court, and will not be disturbed upon appeal absent an abuse of the
sound exercise of that discretion.”), the Petitioners have yet to commit any
discovery violations. They merely sought a protective order. Further, the purpose
of imposing a sanction for discovery violations is “to ensure compliance with the
trial court’s order rather than to punish.” Deutsche Bank Nat’l Trust Co. v. LGC,
107 So. 3d 486, 488 (Fla. 2d DCA 2013). The trial court is undoubtedly aware that
threatening Stockinger and Haider with dismissal of their claims cannot encourage
them to travel to Miami for the depositions because they are medically
18
prohibited from doing so. Further, giving Kuhtreiber the ultimatum of either
traveling to Miami or facing dismissal of her claim will not reasonably “ensure
compliance” with any of the trial court’s orders, but rather, will merely “punish”
her by forcing her to choose between risking her health to travel to Miami for the
deposition and having her claim dismissed. Such punitive sanctions are unduly
harsh and improper.
Dismissing a party’s claim “is the most severe sanction a court may
impose,” and it “should be reserved for the most egregious conduct and used only
in the most extreme circumstances,” Littlefield v. Torrence, 778 So. 2d 368, 369
(Fla. 2d DCA 2001), such as when the violation is ‘“willful, flagrant,
contumacious, or contemptuous.”’ Id. (quoting Momenah v. Ammache, 616 So.
2d 121, 123 (Fla. 2d DCA 1993)); see also Toll v. Korge, 127 So. 3d 883, 887 (Fla.
3d DCA 2013) (providing that as dismissal of a claim for violation of a discovery
order is “the most severe of all sanctions,” it “should be employed only in extreme
circumstances” (quoting Ham, 891 So. 2d at 495)).
Although the majority finds that irreparable harm has not yet occurred
because the parties’ claims have not been dismissed, precluding a party from
participating in the proceedings as a sanction for failing to appear for a
deposition in Miami when the party is medically incapable of doing so is no
less a sanction than an outright dismissal of the party’s claim. The Petitioners’
19
conduct in this case does not warrant the imposition of such a dire sanction, as they
have not engaged in any egregious conduct. This is especially true where, as here,
the Petitioners are more than willing to be deposed in Austria, they have agreed to
pay the Respondents’ counsel’s costs to travel to Austria to depose them, there are
several available alternative options to depose the Petitioners without requiring
them to travel to Miami, and the Petitioners have very little information to provide
other than the documents they have already provided to the Respondents.
To the contrary, Ulrike’s actions are responsible for causing further delay
and substantial legal fees in this action. Simply put, if Ulrike’s counsel had
traveled to Austria as initially ordered by the trial court, the depositions would
most likely have taken place without incident as it appears that the Petitioners were
more than willing to cooperate.
Additionally, the trial court apparently changed its earlier ruling ordering
that the depositions must be taken in Austria after it concluded that the deposition
process in Austria would likely be “complex, time consuming and expensive.”
Thus, rather than attempting to maneuver through this “complex, time consuming
and expensive” process, the trial court chose a route that effectively dismissed
potentially valid claims despite the Petitioners’ compliance with all discovery
orders and their willingness to be deposed in Austria. And, although it may have
been burdensome to conduct telephonic/video depositions due to Stockinger’s
20
hearing impairment and the parties’ need to use the services of an interpreter, the
necessary accommodations could have been made, especially where the trial court
has already concluded that Stockinger and Haider are medically prohibited from
traveling to Miami to be deposed and where such travel is “strongly discouraged”
for Kuhtreiber.
Lastly, and importantly, it is unrefuted that the Petitioners’ claims are
“document driven.” The Petitioners have already admitted that they have never
met the Decedent and did not maintain a relationship with the Decedent. Because
the Petitioners are seeking an interest in the Decedent’s intestate estate as the
Decedent’s heirs, their relationship (or lack of relationship) with the Decedent is
irrelevant, and their claims can be established based solely on authenticated,
written documents. In fact, the Petitioners attached to their petition for
determination of heirs numerous birth records and a family chart indicating that the
Petitioners and the Decedent are half-sisters. Thus, in reality, the Petitioners’
depositions likely will not result in much relevant information, if any, as their
claims are purely document driven, and they have already admitted that they have
never met the Decedent and did not maintain a relationship with the Decedent.
Based on these reasons, the trial court’s Order departs from the essential
requirements of law and will cause irreparable harm.
More importantly, since the majority opinion appears to concede that the
21
trial court departed from the essential requirement of law, the petition should not
be dismissed as premature as the majority concludes. Although the trial court has
not yet carried out its threat to dismiss the Petitioners’ claims, the trial court has
precluded the Petitioners from proceeding with their claims, which will lead to
the same result—the Respondents will proceed with no objection or input by the
Petitioners. And without the impediment of the Petitioners, the Respondents will
most likely become the sole beneficiaries of their deceased aunt’s estate. In other
words, certiorari relief is not premature because the trial court’s Order ends
Haider’s and Stockinger’s participation in the lawsuit regardless of whether
or not the trial court ultimately dismisses their claims at some later date.
Although certiorari is not a general license for appellate courts to closely
supervise the day-to-day decision making of the trial courts, closing the courtroom
doors to parties in a lawsuit who, even by the trial court’s own admission, have not
willingly disobeyed any court order is not only a clear departure from the law, it is
a violation of the most basic constitutional principles of due process and access to
our courts.
The trial court’s Order will cause irreparable harm that cannot be adequately
remedied on plenary appeal because the trial court’s Order precludes the
Petitioners’ from proceeding with their claims. The Order will prevent the
Petitioners from participating in the pending discovery or in the action itself.
22
Therefore, the Petitioners will be barred from attempting to establish that they are
the Decedent’s heirs and are thus entitled to a significant portion of the Decedent’s
estate under section 732.103 of the Florida Statutes. Additionally, because the
Petitioners have been effectively barred from proceeding in the Miami-Dade
probate action, and because the Connecticut probate court has accepted
administration of the holographic will, the Decedent’s estate may be distributed to
Ulrike and Rudolf while the Petitioners are barred from asserting their rights to the
estate here in Miami-Dade County under section 732.103. This would leave the
Petitioners with no recourse. Thus, the Order will cause irreparable harm that
cannot be remedied on plenary appeal.
As the Petitioners have established that the trial court’s Order departs from
the essential requirements of law and that the Order will result in material injury
that cannot be remedied on plenary appeal, I would grant the petition for writ of
certiorari and quash the order under review.
23
Stockinger v. Zeilberger
Court: District Court of Appeal of Florida
Date filed: 2014-11-19
Citations: 152 So. 3d 71
Copy Citations