ANS INC v. OFFICE OF ATTORNEY GENERAL DEPARTMENT OF LEGAL AFFAIRS (2021)

Respondent filed an action against Petitioners, claiming in part that Petitioners violated the “Government Imposter and Deceptive Advertisements Act.” § 817.417, Fla. Stat. Petitioners moved for summary judgment on that count, claiming that the act enacting section 817.417 violated the single-subject rule. The court below denied that motion. Petitioners now seek a writ of certiorari to quash that order.

Generally, an order denying summary judgment is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130. See Bill Holt Sales & Leasing, Inc. v. Cousins, 904 So. 2d 502, 504 (Fla. 1st DCA 2005). But this Court does have certiorari jurisdiction to review “nonfinal orders of lower tribunals other than as prescribed by rule 9.130.” Fla. R. App. P. 9.030(b)(2)(A). “[B]efore certiorari can be used to review non-final orders, the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.” Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc., 104 So.3d 344, 351 (Fla. 2012). Petitioners allege that the irreparable harm supporting certiorari relief that will occur without relief from this Court is the continuation of unnecessary litigation. However, the continuation of litigation and the time, cost and effort required to defend litigation does not rise to the level of irreparable harm. See Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 405–06 (Fla. 2013) (“[W]e reiterate that the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance.”).

We reject Petitioners’ contention that Gundel v. AV Homes, Inc., 264 So. 3d 304 (Fla. 2d DCA 2019), supports relief. The petitioners sought certiorari to review an order denying a motion to dismiss a counterclaim on the ground that the counterclaim violated statutory protection from “Strategic Lawsuits Against Public Participation (SLAPP).” See § 768.295, Fla. Stat. The court held that certiorari was appropriate, because “[i]n the context of the Anti-SLAPP statute, the harm that results from the court's improper denial of a motion to dismiss ․ is precisely the harm that the Anti-SLAPP statute seeks to prevent–unnecessary litigation.” Id. at 311 (emphasis supplied). In other words, because protection against unnecessary litigation is the very reason for the anti-SLAPP statute, certiorari is authorized to prevent that unnecessary litigation. The same is true for a denial of a pretrial motion on the grounds of immunity. If the denial of immunity cannot be raised as an interlocutory appeal pursuant to Rule 9.130, it may be grounds for certiorari because immunity protects against unnecessary litigation. See James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014) (“When the trial court denies a motion to dismiss on immunity grounds, certiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless ․”).

In contrast, the purpose of the single-subject rule, the basis of the summary judgment motion here, is not to prevent unnecessary litigation. In this instance, the general rule noted in Rodriguez applies, and the continuation of litigation does not constitute irreparable harm supporting certiorari.

As Petitioners have not shown irreparable harm, the petition for writ of certiorari is Dismissed.

Winokur, J.

Osterhaus and Long, JJ., concur.