Ekaterina Zakharova, Petitioner, v. Shemuel Maya, et al., Respondents. (2025)

Ekaterina Zakharova, defendant below, petitions this Court for issuance of a writ of certiorari to quash three orders: (1) a February 17, 2023, order granting the plaintiffs’, Shemuel Maya and Diana Daniel (the “Mayas”), emergency motion to enforce settlement agreement; (2) a May 31, 2023, order granting the Mayas’ second motion to enforce settlement agreement; and (3) a March 13, 2025, order denying her motion for judgment on the pleadings as to Count II of the Second Amended Complaint. We dismiss the Petition in part, and we grant the Petition in part.

Because Zakharova failed to seek certiorari review of the February 17, 2023, and May 31, 2023, enforcement orders within thirty days of their rendition, this Court lacks certiorari jurisdiction to review those orders. See Fla. R. App. P. 9.100(c)(1) (providing that a petition for certiorari must be filed within thirty days of rendition of the order to be reviewed).¹ Accordingly, we dismiss the petition as to the two enforcement orders for lack of jurisdiction. As to the March 13, 2025, order, however, the Petition is timely.

“Certiorari is an extraordinary remedy that is available only in limited circumstances.” Avatar Prop. & Cas. Ins. Co. v. Mitchell, 314 So. 3d 640, 641 (Fla. 3d DCA 2021) (quoting Charles v. State, 193 So. 3d 31, 32 (Fla. 3d DCA 2016)). “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.” Greater Miami Expressway Agency v. Miami-Dade Cnty. Expressway Auth., 393 So. 3d 794, 795 (Fla. 3d DCA 2024) (quoting Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014)). “The last two elements are jurisdictional and must be analyzed before the court may even consider the first element.” Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011).

In the Petition, Zakharova asserts that the trial court departed from the essential requirements of the law in denying her motion for judgment on the pleadings based upon the absolute litigation immunity privilege, causing her irreparable harm. We agree.

In Florida, the litigation privilege provides “absolute immunity ‘to any act occurring during the course of a judicial proceeding ․ so long as the act has some relation to the proceeding.’ ” Arko Plumbing Corp. v. Rudd, 230 So. 3d 520, 523 (Fla. 3d DCA 2017) (emphasis added) (citing Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007)). This privilege has been extended to claims of tortious behavior where the alleged tortious behavior occurred during a judicial proceeding and had some relation to the proceeding. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (“[A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ․ so long as the act has some relation to the proceeding.”); Boca Invs. Grp., Inc. v. Potash, 835 So. 2d 273, 274-75 (Fla. 3d DCA 2002) (affirming the trial court's granting of defendants’ motion for judgment on the pleadings based on absolute litigation privilege because “all of the acts alleged in support of the tortious interference claim bear a relationship to the proceedings instituted by defendants.”).

Here, Count II of the Second Amended Complaint alleged Zakharova tortiously interfered with the property sales contract between the Mayas and Zakharova's former husband, Sergey Slastikhin, by entering an agreed final judgment with Slastikhin in a separate action for fraud.² Because the agreed final judgment is related to a judicial proceeding and occurred during a judicial proceeding, we find the absolute litigation immunity applies,³ and the trial court departed from the essential requirements of the law in denying Zakharova's motion, causing irreparable harm. See Bank of America, N.A. v. De Morales, 314 So. 3d 528, 531 (Fla. 3d DCA 2020) (“Although the expense of continued litigation is ordinarily not a harm that warrants certiorari relief, it may lie in cases where the immunity asserted is from litigation altogether, and not just from liability.”); see also O'Brien v. Exposito, 824 So. 2d 954, 955 (Fla. 3d DCA 2002) (finding the party “will effectively lose his entitlement to ․ immunity if the case proceeds to trial, thereby causing irreparable injury to [the party]”); Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So. 3d 344, 353 (Fla. 2012) (noting “absolute immunity ․ is intended to prevent a party from becoming involved in a lawsuit altogether”). Thus, we grant the Petition and quash the March 13, 2025 order.

Petition dismissed in part; granted in part. Order quashed.

FOOTNOTES

1.   Zakharova suggests we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.040(a), which states that “[i]n all proceedings a court will have such jurisdiction as may be necessary for a complete determination of the cause.” Fla. R. App. P. 9.040(a). However, the rule does not appear to provide certiorari jurisdiction when the jurisdiction of this Court was not timely invoked. See Fla. R. App. P. 9.040(a) committee notes to 1977 amendment (“This provision is intended to guarantee that once the jurisdiction of any court is properly invoked, the court may determine the entire case to the extent permitted by substantive law. This rule does not extend or limit the constitutional or statutory jurisdiction of any court.” (emphasis added)).

2.   Zakharova's action against Slastikhin, his company, Innovative Technologies & Consulting Limited Corp. (“IT&C”), and Great Ocean, alleged the property was fraudulently transferred from IT&C to Slastikhin (the “Fraud Action”).

3.   The Mayas’ reliance on Ingalsbe v. Stewart Agency, Inc., 869 So. 2d 30 (Fla. 4th DCA 2004), to argue the litigation privilege does not apply, fails. In Ingalsbe, the appellants had been retained by their client to sue the appellees, and they had a written fee contract with the client. 869 So. 2d at 31. The appellees then settled with the client, without the appellants, and the appellees included a provision for fees in the settlement. Id. The appellants then sued the appellees for interference with its fees contract. Id. The court held that the appellees were “not privileged to use the right to settle in such a way as to interfere with the obligation of [the client] arising from the clear language of the fee contract.” Id. at 32-33 (finding appellants’ action was not barred by absolute immunity because “there is nothing inherent in the right to settle lawsuits that would compel a corollary right to interfere with a fee contract between one of the settling parties and his lawyer.”). Here, the Mayas are not arguing interference with a fee contract.

PER CURIAM.