DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IMC MEDICAL CENTERS, LLC and
JOSEPH YORK a/k/a JOSEPH ZUMWALT,
Petitioners,
v.
JOHN DELUCA,
Respondent.
No. 4D21-853
[August 11, 2021]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Nicholas Richard Lopane, Judge; L.T.
Case No. CACE20-16525 (03).
Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort
Lauderdale, and Michael A. Bernstein of Michael A. Bernstein, P.A., Fort
Lauderdale, for petitioners.
Marcy S. Resnik and Rachael L. Gibbs of Kahn & Resnik, P.L., Fort
Lauderdale, for respondent.
FORST, J.
Petitioners seek a writ of certiorari to quash the trial court’s non-final
order denying their motion to dismiss Respondent’s complaint for a pure
bill of discovery. Because Petitioners have failed to demonstrate the
requisite irreparable harm necessary for certiorari review, we lack
jurisdiction over this petition, and therefore dismiss the petition.
On certiorari review, before an appellate court may determine whether
an interlocutory order departs from the essential requirements of law, the
petitioner must establish that the challenged order causes material harm
which is irreparable by postjudgment appeal. CQB, 2010, LLC v. Bank of
N.Y. Mellon, 177 So. 3d 644, 645 (Fla. 1st DCA 2015); Parkway Bank v.
Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995).
Such irreparable harm may be shown where a trial court enters a non-
final order denying a petitioner’s motion to dismiss a complaint for pure
bill of discovery that simultaneously directs the petitioner to disclose the
very discovery sought by the complaint. Am. Med. Sys., LLC v. MSP
Recovery Claims, Series LLC, 290 So. 3d 548, 549–51 (Fla. 3d DCA 2019)
(explaining that a trial court’s non-final order in pure bill of discovery
actions may be akin to the proverbial “cat out of the bag” discovery orders
that courts have routinely found to cause the requisite irreparable harm
necessary for certiorari jurisdiction).
In contrast, where the trial court merely denies the petitioner’s motion
to dismiss and directs the petitioner to file an answer, no irreparable harm
is caused. In the latter situation, “should the trial court, after [the
petitioner files an answer], render a final judgment compelling discovery,
[the petitioner] would have an adequate remedy via plenary appeal and an
accompanying stay.” Id. at 552.
Here, the trial court merely denied Petitioners’ motion to dismiss and
directed them to file an answer; the court did not require Petitioners to
disclose any discovery sought by the underlying complaint. Consequently,
Petitioners have not demonstrated the requisite irreparable harm
necessary for us to have jurisdiction over this petition.
Petitioners rely upon our opinion in JM Family Enterprises, Inc. v.
Freeman, 758 So. 2d 1175 (Fla. 4th DCA 2000), in support of their
argument. There, we granted a petition for writ of certiorari and quashed
the trial court’s order denying the petitioners’ motion to dismiss the
respondents’ complaint for pure bill of discovery. Id. at 1176. However,
our opinion did not mention whether, or to what extent, the challenged
order directed the petitioners to disclose the sought-after discovery, nor
did the opinion “contain[] any mention of irreparable harm, which . . . is a
threshold consideration for an appellate court.” Am. Med. Sys., LLC, 290
So. 3d at 551. As such, Freeman is not applicable to a case where “[t]he
challenged order does not require Petitioners to produce any discovery.”
Id. at 552.
As discussed above, Petitioners “at this stage of the litigation, ha[ve] not
established the requisite irreparable harm stemming from the trial court’s
order for us to exercise certiorari jurisdiction.” Geico Cas. Co. v. MSP
Recovery Claims, 46 Fla. L. Weekly D480, 2021 WL 800231, at *1 (Fla. 3d
DCA Mar. 3, 2021). Accordingly, we dismiss the petition for lack of
jurisdiction.
Dismissed.
DAMOORGIAN AND GERBER, JJ., concur.
2
* * *
Not final until disposition of timely filed motion for rehearing.
3