Invoking the Relief of Certiorari in Your Florida Probate Case
What is a petition for certiorari? What should your Palm Beach probate attorney know about petitions for certiorari? When can you file a petition for certiorari in your inheritance lawsuit? What must you demonstrate to invoke the relief of certiorari in a Florida probate lawsuit? Should I file a petition of certiorari or an appeal?
Probate Litigation and Petitions for Certiorari
If you are in the middle of a heated probate battle in the Florida courts, there may be a time where you strongly disagree with an order from the trial court. What can you do if you believe that the trial court incorrectly entered an order? Do you have to wait to file an appeal? What if the order is non-appealable? Florida appellate lawyers know that, generally, you can only appeal final orders. However, there are exceptions.
In limited circumstances, your Florida probate lawyer can seek certiorari review from the appellate court. Certiorari review only becomes an option when, during litigation, the trial court “departs from the essential requirements of law.”
There are three requirements that must be demonstrated to invoke the relief of certiorari: 1) you have to establish a departure from the essential requirements of the law 2) resulting in material injury for the remainder of the case 3) the injury can’t be corrected on post-judgment appeal.
Hiring a Florida Lawyer to File a Petition for Certiorari
Invoking the relief of certiorari is not easy. Therefore, your probate lawyer should be experienced and knowledgeable about the process. You may want to consider hiring a West Palm Beach law firm with both skilled litigators and seasoned appellate lawyers.
Although filing a petition for certiorari relief is different than filing an appeal, it’s helpful to have a lawyer that has experience with Florida appeals. Your lawyer should be familiar with navigating the District Courts of Appeal, and should be comfortable with the judges and procedures at the appellate courts throughout Florida.
A partner at Pankauski Hauser Lazarus, Robert Hauser, has been named a Board-Certified Specialist by The Florida Bar in Appellate Practice since June 1, 2009. This designates Mr. Hauser as an expert and specialist in Florida appeals.
Irreparable Harm and Certiorari Review
A May 6, 2020 Third DCA opinion, Katz v. Riemer, shows just how difficult it can be to get a writ of certiorari petition granted. Here, the petitioners seek certiorari review of a trial court’s order denying their motion to compel financial disclosures from beneficiaries involved in the matter.
The court explains that ” a non-final, non-appealable order may be reviewed by petition for a writ of certiorari where the petitioner shows: ( 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.”
Furthermore, to invoke relief of certiorari, a finding that the petitioning party has suffered irreparable harm that cannot be remedied on direct appeal is necessary.
In this particular case, the appellate court decided that the petitioners failed to show irreparable harm, resulting in the Third DCA dismissing the petition.
If you are involved in a probate or inheritance dispute, and believe that certiori review is needed, you may want to read this opinion in its entirety. You may also want to interview a West Palm Beach litigator. To interview an attorney at Pankauski Hauser Lazarus, free of charge, call (561)514-0900 ext.101.