Sundale, Ltd. v. Williams Paving Co.

District Court of Appeal of Florida

Sundale, Ltd. v. Williams Paving Co.

913 So. 2d 740, 2005 Fla. App. LEXIS 17199, 2005 WL 2863025

CourtDistrict Court of Appeal of Florida

DecidedNovember 2, 2005

DocketNo. 3D05-2352

StatusPublished

Cited by2 cases

This text of 913 So. 2d 740 (Sundale, Ltd. v. Williams Paving Co.) 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.

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Sundale, Ltd. v. Williams Paving Co., 913 So. 2d 740, 2005 Fla. App. LEXIS 17199, 2005 WL 2863025 (Fla. Ct. App. 2005).

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Opinion

RAMIREZ, J.

The petitioner seeks a writ of certiorari or prohibition challenging the trial court’s order dated August 2, 2005, setting the cause for trial on November 7, 2005. It seems clear that the case was not at issue until September 16, 2005, when the respondents filed their response to petitioner’s affirmative defenses. Thus, the order setting the cause for trial did not comply with Florida Rule of Civil Procedure 1.440.

However, for the issuance of a writ of certiorari, more is required than a simple legal error. See Escobar v. United Auto. Ins. Co., 898 So.2d 952, 954 (Fla. 3d DCA 2005). The petitioner must demonstrate that it has no adequate remedy on final appeal. See McCreery v. Fernandez, 882 So.2d 498 (Fla. 4th DCA 2004). Sundale has not even attempted to allege how an appeal cannot remedy this legal error. We therefore deny the issuance of a writ of certiorari or prohibition but caution that, while the respondent may prevail today, any recovery may be subject to reversal on appeal, a situation easily remedied if the matter is simply set in accordance with rule 1.440.

Petition denied.

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RAMIREZ, J.

The petitioner seeks a writ of certiorari or prohibition challenging the trial court’s order dated August 2, 2005, setting the cause for trial on November 7, 2005. It seems clear that the case was not at issue until September 16, 2005, when the respondents filed their response to petitioner’s affirmative defenses. Thus, the order setting the cause for trial did not comply with Florida Rule of Civil Procedure 1.440.

However, for the issuance of a writ of certiorari, more is required than a simple legal error. See Escobar v. United Auto. Ins. Co., 898 So.2d 952, 954 (Fla. 3d DCA 2005). The petitioner must demonstrate that it has no adequate remedy on final appeal. See McCreery v. Fernandez, 882 So.2d 498 (Fla. 4th DCA 2004). Sundale has not even attempted to allege how an appeal cannot remedy this legal error. We therefore deny the issuance of a writ of certiorari or prohibition but caution that, while the respondent may prevail today, any recovery may be subject to reversal on appeal, a situation easily remedied if the matter is simply set in accordance with rule 1.440.

Petition denied.

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913 So. 2d 740, 2005 Fla. App. LEXIS 17199, 2005 WL 2863025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sundale-ltd-v-williams-paving-co-fladistctapp-2005.

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