County Civil Court:  APPELLATE PROCEDURE – Appealability/Improper Relief – order denying expert witness fee – common law certiorari review improvidently granted - appellate court lacks jurisdiction to review petition – adequate and complete remedy is available to petitioner at the conclusion of the trial court proceedings – Petition dismissed.  Hartley Chiropractic Center v. State Farm Mutual Automobile Ins. Co., No. 03-1111CI-88B (Fla. 6th Cir. App. Ct. August 23, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

HARTLEY CHIROPRACTIC CENTER,

on behalf of Beverly Elzic,

                        Petitioner,

 

vs.                                                                                                Appeal No.03-1111CI-88B

                                                                                                    UCN522003CA001111XXCICI

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

                        Respondent.

____________________________________/

 

ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by the Petitioner, Hartley Chiropractic Center, on behalf of Beverly Elzic (Hartley), seeking review of the Second Order Denying Expert Fee, entered January 8, 2003, and the Response, filed by the Respondent, State Farm Mutual Automobile Insurance Company (State Farm).  Upon consideration of the same and being otherwise fully advised, the Court finds that common law certiorari review was improvidently granted and that the Court presently lacks jurisdiction to review the merits of this appeal.  See Muben-Lamar, L.P. v. Fla. Dept. of Revenue, 789 So.2d 337 (Fla. 2001)(finding that jurisdiction was improvidently granted and dismissing appeal for lack of jurisdiction); Dept. of Revenue v. Hylton, 720 So.2d 1115 (Fla. 1st DCA 1998)(same).

            In a similar case, Leverone v. Liberty Mutual Ins. Co., Appeal No. 01-7096CI-88A (Fla. 6th Ct. App. Ct. Oct. 11, 2001), this Court, sitting in its appellate capacity, denied certiorari review of an order denying a reasonable expert fee finding that the Petitioner was unable “to show that there has been a violation of a clearly established principle of law resulting in the miscarriage of justice or that the lower court’s order would cause a material injury which could not be remedied on appeal.”  Citing Doe v. Archdiocese of the Catholic Church of Miami, 721 So.2d 428 (Fla. 3d DCA 1998); Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977).  Likewise, there is an adequate and complete remedy available to Hartley at the conclusion of the trial court proceedings below.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition is dismissed.

             DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of August 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Judge Walter Fullerton

 

Mark T. Tischhauser, Esquire

3134 North Boulevard

Tampa, Florida 33603

 

Robert H. Oxendine, Esquire

720 East Fletcher Ave., Suite 212

Tampa, FL 33612