Flores A/K/A Lopez v. Lopez

District Court of Appeal of Florida

Flores A/K/A Lopez v. Lopez

197 So. 3d 594, 2016 WL 3181982, 2016 Fla. App. LEXIS 8796

CourtDistrict Court of Appeal of Florida

DecidedJune 8, 2016

Docket16-0861 & 16-0848

StatusPublished

This text of 197 So. 3d 594 (Flores A/K/A Lopez v. Lopez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flores A/K/A Lopez v. Lopez, 197 So. 3d 594, 2016 WL 3181982, 2016 Fla. App. LEXIS 8796 (Fla. Ct. App. 2016).

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Opinion

LOGUE, J.'

Jose Ignacio Lopez, Sr., an incapacitated person, through his adult children and co-gu'ardians, filed the underlying lawsuit for the annulment of his marriage to Maria Mercedes Flores. In the trial court, Flores filed a motion to dismiss the annulment action and also moved for a protective order, which the trial court denied. Flores filed a petition for certiorari review of those orders. Also in the trial court, Lopez moved to compel execution and delivery of a quit claim deed, as required by a provision in a prenuptial agreement between Lopez and Flores, which the trial court granted. Flores filed an interlocutory appeal of that order.

We begin by addressing Flores’ petition. “To prevail in its petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (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 corrected on post-judgment appeal.” Damsky v. Univ. of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014); see also Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (“[I]t is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has *596 suffered an irreparable harm that cannot be remedied on direct appeal.”)- We find no material injury which cannot be corrected on post-judgment appeal. Accordingly, we dismiss the writ. 1

Regarding the interlocutory appéal, we accept. Lopez’s interpretation of the trial court order as including the statements of the trial judge that the execution and delivery of the deed gives Lopez no right to exclusive use or possession of the home, subject to further order of the court. The appeal, therefore, should be dismissed because “the parties’ respective claims to immediate possession remain subject :to determination,” Higgins v. Ryan, 81 So.3d 588, 589 (Fla. 3d DCA 2012).' . '

Petition dismissed; appeal dismissed.

1

. Even if Flores had established a material injury which cannot be corrected on direct appeal, the trial court's action in deciding the case in conformity with the majority decision in Smith v. Smith, 199 So.3d 911, 41 Fla. L. Weekly D542, 2016 WL 803625 (Fla. 4th DCA Mar. 2, 2016), rather'than the dissent in that case, does .not constitute a departure from the essential requirements of law.

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LOGUE, J.'

Jose Ignacio Lopez, Sr., an incapacitated person, through his adult children and co-gu'ardians, filed the underlying lawsuit for the annulment of his marriage to Maria Mercedes Flores. In the trial court, Flores filed a motion to dismiss the annulment action and also moved for a protective order, which the trial court denied. Flores filed a petition for certiorari review of those orders. Also in the trial court, Lopez moved to compel execution and delivery of a quit claim deed, as required by a provision in a prenuptial agreement between Lopez and Flores, which the trial court granted. Flores filed an interlocutory appeal of that order.

We begin by addressing Flores’ petition. “To prevail in its petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (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 corrected on post-judgment appeal.” Damsky v. Univ. of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014); see also Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (“[I]t is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has *596 suffered an irreparable harm that cannot be remedied on direct appeal.”)- We find no material injury which cannot be corrected on post-judgment appeal. Accordingly, we dismiss the writ. 1

Regarding the interlocutory appéal, we accept. Lopez’s interpretation of the trial court order as including the statements of the trial judge that the execution and delivery of the deed gives Lopez no right to exclusive use or possession of the home, subject to further order of the court. The appeal, therefore, should be dismissed because “the parties’ respective claims to immediate possession remain subject :to determination,” Higgins v. Ryan, 81 So.3d 588, 589 (Fla. 3d DCA 2012).' . '

Petition dismissed; appeal dismissed.

1

. Even if Flores had established a material injury which cannot be corrected on direct appeal, the trial court's action in deciding the case in conformity with the majority decision in Smith v. Smith, 199 So.3d 911, 41 Fla. L. Weekly D542, 2016 WL 803625 (Fla. 4th DCA Mar. 2, 2016), rather'than the dissent in that case, does .not constitute a departure from the essential requirements of law.

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197 So. 3d 594, 2016 WL 3181982, 2016 Fla. App. LEXIS 8796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-aka-lopez-v-lopez-fladistctapp-2016.

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