                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL

                                                 OF FLORIDA

                                                 SECOND DISTRICT


FLORIDA INSURANCE GUARANTY     )
ASSOCIATION,                   )
                               )
         Petitioner,           )
                               )
v.                             )                              Case No. 2D13-5609
                               )
CHAD MURPHY & LORRAINE MURPHY, )
                               )
         Respondents.          )
                               )

Opinion filed April 10, 2015.

Petition for Writ of Certiorari to the Circuit
Court for Pasco County; Stanley R. Mills,
Judge.

Helen Klein of Conroy, Simberg, Ganon,
Krevans, Abel, Lurvey, Morrow & Schefer,
P.A., Hollywood, for Petitioner.

George A. Vaka and Nancy A. Lauten of
Vaka Law Group, Tampa, and Neil O'Brien
of the Law Offices of Joseph Porcelli, New
Port Richey, for Respondents.



SLEET, Judge.

               The Florida Insurance Guaranty Association (FIGA) seeks certiorari

review of the trial court's order granting Chad and Lorraine Murphy's motion for partial
summary judgment as to liability and damages associated with subsurface repair costs

in the Murphys' action against FIGA stemming from a sinkhole claim. For the reasons

discussed below, we grant the petition for writ of certiorari and quash the trial court's

partial summary judgment.

              On February 28, 2010, the Murphys filed a claim for sinkhole damage with

Homewise Preferred Insurance Company for insurance policy benefits under their

homeowner's policy. In November 2011, Homewise became insolvent and FIGA

became statutorily obligated to handle the claims of Homewise pursuant to the Florida

Insurance Guaranty Association Act. See §§ 631.50-.70, Fla. Stat. (2011). In July

2012, the Murphys sued FIGA for breach of the insurance policy, alleging that FIGA

failed to acknowledge a covered loss and failed to pay insurance benefits due and

owing. The Murphys sought money damages for both cosmetic and subsurface repairs

to their home.

              Both parties filed motions for summary judgment. The trial court granted

partial summary judgment in favor of the Murphys on FIGA's liability on the subsurface

damages and repair costs, but the order specifically noted that the cost of cosmetic

repairs remained in dispute. As such, "under traditional rules of finality," the order is not

a final, appealable order. See E. Ave., LLC v. Insignia Bank, 136 So. 3d 659, 661 (Fla.

2d DCA 2014). The cost of cosmetic repairs is not a separate claim. And the trial court

should determine both cosmetic and subsurface damages and render a final judgment.

Nonetheless, the order contains language that authorizes execution. As such, review

by certiorari is proper. Id. at 664 ("[C]ertiorari is available to review the form of an order

. . . insofar as it permits execution prior to rendition of an appealable final judgment.




                                             -2-
This notion . . . is premised on the question of whether an order properly may subject a

litigant to execution at a time when the trial court litigation is incomplete and there is no

available appellate remedy.").

              A petitioner seeking a writ of common law certiorari "must
              establish (1) a departure from the essential requirements of
              the law, (2) resulting in material injury for the remainder of
              the trial (3) that cannot be corrected on postjudgment
              appeal." Parkway Bank v. Fort Myers Armature Works, Inc.,
              658 So. 2d 646, 648 (Fla. 2d DCA 1995). Elements two and
              three constitute a jurisdictional test, and "[i]f the jurisdictional
              prongs of the standard three-part test are not fulfilled, then
              the petition should be dismissed rather than denied." Id. at
              649.

Rogan v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (alteration in original).

              Furthermore,

              before certiorari can be used to review [nonfinal] 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.
              Assuming this requirement is met, the court must then
              determine whether the decision below departed from the
              essential requirements of law—something that is more than
              just a legal error.

Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012) (citation

omitted), quoted in E. Ave., 136 So. 3d at 664.

              Here, the jurisdictional prongs are satisfied because while the Murphys

may seek execution of the judgment, FIGA may not obtain review until the trial court

renders a final order. See E. Ave., 136 So. 3d at 665 (concluding "that the order at

issue here satisfies the two jurisdictional prongs of the certiorari test" because it

"subject[ed] East Avenue to execution at a time when it ha[d] no appellate remedy and

therefore [could not] protect its assets by filing a supersedeas bond"). Furthermore,




                                              -3-
allowing execution on the judgment prior to entry of a final, appealable order is a

departure from the essential requirements of law. Id. ("The remaining question is

whether the order at issue departed from the essential requirements of law insofar as it

permitted execution prior to rendition of a truly appealable final judgment in the case.

We conclude that it did.").

              Accordingly, we grant the petition for writ of certiorari and quash the trial

court's order of partial summary judgment.

              Petition granted; order quashed.



WALLACE and LaROSE, JJ., Concur.




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