Petitions for Certiorari in Probate Cases

Posted on November 21, 2014

In a decision this week, the Third District Court of Appeal of Florida (“3d DCA”) in Stockinger v. Zeilberger, 2014 WL 6465244 (Fla. 3d DCA 2014) dismissed a petition for certiorari to quash a probate court order that stated the petitioner’s claims could not proceed because they were unavailable to be deposed.  As in all other aspects of law, a grant of such petition requires the condition precedent of irreparable harm to be present.  If the party seeking review does not demonstrate that it will suffer material injury of an irreparable nature, then an appellate court may not grant certiorari relief from a non-appealable non-final order.  Similarly, if the alleged harm can be remedied on appeal, the harm is not considered irreparable, and thus certiorari relief is not merited.

Hammerschmid, Stockinger, Haider, and Kuhtreiber are elderly residents of Austria, who filed a petition in Florida to be recognized as partial heirs in the estate of Rosina Hanko, which was probated in Miami-Dade County.  In their filing, they asserted that they are half-sisters of the deceased, but the personal representative of the estate tried to depose them to no avail, allegedly because of their health, age, and other matters.  The trial court filed an interim order stating that (1) their claims cannot proceed because they are unavailable to be deposed, (2) “at the appropriate time upon the filing of appropriate motions undersigned [judge] will consider dismissal of those claims,” and (3) Kuhtreiber will appear for deposition in Miami, Florida within 45 days.

Stockinger, Haider, and Kuhtreiber filed a petition for certiorari to quash the order, and the Third District Court of Appeal of Florida dismissed the petition for lack of jurisdiction to issue the writ.

As the 3d DCA explained, the serious legal impediment to granting the writ in this case is that the persons cannot show irreparable harm at this stage of the proceeding.  Recently explained by the Florida Supreme Court in Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344, 351-52 (Fla. 2012), ‘[v]ery few categories of non-final orders qualify for the use of a writ of certiorari.”  They are only to be used as a narrow remedy in extraordinary circumstances.  A petitioner for this writ is required to show that the challenged non-final order departs from essential requirements of law, results in material injury for the remainder of the case, and such injury is incapable of correction on a post-judgment appeal.  Thus, this establishment of what is referred to as “irreparable harm” must be illustrated at the outset, and Stockinger, Haider, and Kuhtreiber must show that the order at issue inflicts a material injury that cannot be corrected on appeal.

The order asked to be reviewed by the 3d DCA here only puts them on notice that their case mightbe dismissed.  It resolves absolutely nothing with finality.  If the claims are ever dismissed, then, at the appropriate time upon an appropriate appeal from a final order, this court could review the matter.  But, as the Court stated, at this point, nothing concrete occurred.  The 3d DCA reasoned that probate judges may use such orders to threaten or admonish the parties in order to break a discovery gridlock inprobate proceedings.  It is a faster, cheaper, and fairer method without the interference of the appellate courts.

Therefore, at this point, the 3d DCA held that the Petitioners’ contention that there might be irreparable harm is based solely on conjecture, and such speculation is too attenuated to establish irreparable harm.  As a result, the 3d DCA is without jurisdiction to issue the writ and the petition is dismissed.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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