Valenzuela v. Valenzuela
| Decision Date | 11 August 1994 |
| Docket Number | No. 94-1487,94-1487 |
| Citation | 648 So.2d 741 |
| Court | Florida District Court of Appeals |
| Parties | 19 Fla. L. Weekly D2343 Emilio E. VALENZUELA, Appellant, v. Jaimie J. VALENZUELA, Appellee. |
Gerald J. Tobin and Howard Brodsky, Miami, for appellant.
Markus & Winter and Robert O. Schwarz, Miami, for appellee Dr. Ana Rivas-Vazquez.
ORDERED that appellee Dr. Ana Rivas-Vazquez's motion to dismiss appeal is granted and this non-final appeal from the Circuit Court for Dade County, Florida, is hereby dismissed.
Before NESBITT, GERSTEN and GODERICH, JJ.
ON MOTION FOR REHEARING AND ATTORNEYS' FEES
Appellant seeks a rehearing on this court's order to dismiss his non-final appeal. Appellee seeks attorneys' fees based upon Florida Rule of Appellate Procedure 9.410. We deny the motions.
Appellant appealed a non-final order directing him to pay an expert witness fee prior to the taking of the expert's deposition. We first determined that the appealed order was not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Next, we explored whether this improperly filed appeal could properly be reviewed as a petition for writ of certiorari, pursuant to our authority to treat a cause "as if the proper remedy had been sought." Fla.R.App.P. 9.040(c); see Pridgen v. Board of County Comm'rs of Orange County, 389 So.2d 259 (Fla. 5th DCA 1980), review denied, 397 So.2d 777 (Fla.1981).
A petition for writ of certiorari is an extraordinary remedy to be granted only upon the showing of a departure from from the essential requirements of the law which causes material injury for which there is no adequate remedy by appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). Here, the trial court did not depart from the essential requirements of the law. Florida Rule of Civil Procedure 1.390(c) provides that "[t]he court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree."
We also found that there was an adequate remedy by plenary appeal where, as here, movants were required to pay costs in compliance with a court order. See Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982); Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978). Therefore, because we determined that the non-final order was not appealable and could not properly be treated as a petition for writ of certiorari, we dismissed the appeal.
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