Bondurant v. Geeker
| Decision Date | 22 December 1986 |
| Docket Number | No. BQ-212,BQ-212 |
| Citation | 499 So.2d 909,12 Fla. L. Weekly 19 |
| Parties | 12 Fla. L. Weekly 19 Robert E. BONDURANT, M.D., Petitioner, v. The Honorable Nicholas P. GEEKER, Circuit Judge for the First Judicial Circuit in and for Escambia County, Respondent. |
| Court | Florida District Court of Appeals |
Danny L. Kepner, of Shell, Fleming, Davis & Menge, Pensacola, for petitioner.
R.P. Warfield, of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, and Donald H. Partington, of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for respondent.
Petitioner seeks a writ of prohibition prohibiting the trial judge from allowing a wrongful death action to proceed. Petitioner moved to dismiss the complaint on the ground that the statute of limitations period had expired. The trial court agreed with petitioner's contention that under section 768.57 Fla.Stat.1986, the complaint filed before 90 days from the date of serving notice of intent to litigate did not toll the statute of limitations. However, the court found that application of the statute under section 768.57(10) was unconstitutional when the cause of action arose prior to the statute's enactment. In effect, petitioner is seeking interlocutory review of an order denying his motion to dismiss, and we therefore deny the writ on procedural grounds.
Petitioner relies primarily on a recent decision in which the Third District granted prohibition on facts similar, though not identical, to those in this case. Public Health Trust of Dade County v. Knuck, 495 So.2d 834 (Fla. 3rd DCA, 1986). The court in Knuck did not discuss the propriety of prohibition in those circumstances, and we will not speculate on the reasons for finding prohibition to be appropriate there. We do find that in the present case, prohibition is not appropriate.
Prohibition is an extraordinary remedy which is only available to prevent an inferior tribunal from acting in excess of its jurisdiction; it is not available to prevent an erroneous exercise of jurisdiction; and it is not available to cure an error when there is an adequate remedy by appeal. English v. McCrary, 348 So.2d 293 (Fla.1977). The challenged order was entered in a proceeding in which the trial court had both subject matter and personal jurisdiction. The order is nothing more than one rejecting an affirmative defense, and, consequently, denying a motion to dismiss. Petitioner is, at best, attempting to prevent an alleged erroneous exercise of jurisdiction, and the grounds raised in this petition may be raised on direct appeal if petitioner suffers an adverse judgment below. Under English v. McCrary,...
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O'Donnell's Corp. v. Ambroise
...the wrong by direct appeal. English; Broward County v. Florida Nat'l Props., 613 So.2d 587 (Fla. 4th DCA 1993); Bondurant v. Geeker, 499 So.2d 909 (Fla. 1st DCA 1986). Application of these general principles makes it abundantly clear that prohibition is not an appropriate remedy in the inst......
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O'Donnell's Corporation v. Ambroise, Case No. 5D03-324 (Fla. App. 5th Dist. 11/7/2003)
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