                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

STO CORP., a foreign corporation,       NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Petitioner,                       DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D14-0637

GREENHUT CONSTRUCTION
COMPANY, INC., a Florida
corporation, and GULF COAST
SPECIALTIES, INC., a Florida
corporation; FIDELITY AND
DEPOSIT COMPANY OF
MARYLAND, a foreign corp., and
USA WOOD DOORS, INC., a
Florida corporation,

      Respondents.

___________________________/

Opinion filed September 16, 2014.

Petition for Writ of Certiorari – Original Jurisdiction

Richard A. Sherman, Sr. and James W. Sherman of Richard A. Sherman, P.A., Ft.
Lauderdale; Gary F. Baumann and Thomas B. Rogers, of Fulmer, LeRoy, Albee,
Baumann, PC, Ft. Lauderdale, for Petitioner.

Bruce B. Partington and Kenneth B. Bell, of Clark, Partington, Hart, Larry, Bond &
Stackhouse, Pensacola, for Respondent Greenhut Construction Company, Inc.; and
Robert C. Palmer, III, of Wade, Palmer & Shoemaker, P.A., Pensacola, for
Respondent Gulf Coast Specialties, Inc.
WOLF, J.

       Petitioner seeks certiorari review of a discovery-violation sanction order issued

pursuant to Florida Rule of Civil Procedure 1.380 deeming certain paragraphs of the

complaint admitted after petitioner failed to fully comply with an order compelling

production. As explained in Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.

1987), superceded by statute on other grounds, § 768.72, Fla. Stat. (1989),

       [a] non-final order for which no appeal is provided by Rule 9.130 is
       reviewable by petition for certiorari only in limited circumstances. The
       order must depart from the essential requirements of law and thus cause
       material injury to the petitioner throughout the remainder of the proceedings
       below, effectively leaving no adequate remedy on appeal.

The Florida Supreme Court emphasized that this jurisdiction is very limited, noting that

one of the few non-final discovery-related orders that an appellate court has jurisdiction to

review on certiorari are orders compelling discovery, but only when such compulsion is

in violation of certain rights and results in “cat-out-of-the-bag” scenarios. See, id. at

1100. In such situations, there is no “adequate redress by plenary appeal from a final

judgment.” Id. at 1100. Even if the court’s action effectively enters default as to

liability and “strikes” a petitioner’s affirmative defenses, such non-final orders can

normally be adequately reviewed on appeal and thus are not subject to certiorari review.

See e.g., Cohen v. DeYoung, 655 So. 2d 1265 (Fla. 5th DCA 1995); Manatee County v.

Estech Gen. Chems. Corp., 402 So. 2d 75 (Fla. 2d DCA 1981).




                                             2
      This court noted in West Florida Regional Medical Center, Inc. v. See, 18 So. 3d

676, 682 (Fla. 1st DCA 2009), that the irreparable harm element should be addressed

first because it is an issue of jurisdiction. Here, while petitioner asserts that the trial

court departed from the essential requirements of law by failing to fully comply with

the requirements of Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), the petitioner

fails to demonstrate that any harm caused by the trial court’s sanction cannot be

adequately redressed on appeal, i.e., that any material injury is irreparable.

      Petitioner belatedly cites in its reply brief to Coconut Grove Playhouse, Inc. v.

Knight-Ridder, Inc., 935 So. 2d 597 (Fla. 3d DCA 2006), claiming that the Third

District Court of Appeal accepted certiorari jurisdiction when the trial court issued a

sanction order on a failure to produce documents which essentially entered a default

against Coconut Grove, because the trial court departed from the essential requirements

of law by failing to comply with Kozel. Petitioner claims here that the trial court’s

failure to comply with Kozel also makes this case amenable to certiorari review.

      Petitioner’s reliance on Coconut Grove is misplaced. That case involved a suit to

compel public records from an entity which denied it was subject to Chapter 119,

Florida Statutes. Id. at 598. The court had ordered Coconut Grove to produce the

documents or show cause why it was not a public agency. Id. When Coconut Grove

appeared at a hearing without the documents but arguing it was not a public agency,

the court found it had failed to comply with the subpoena. Id. As a sanction, the court


                                            3
ordered the production of the documents requested in the complaint, “essentially

entering a default.” Id. Because the order failed to comply with Kozel, the Third

District granted the petition and remanded for the trial court to comply. Id. at 599.

This was essentially a “cat-out-of-the-bag” scenario which would require Coconut Grove

to respond to a public records request which it asserted did not apply. While the failure to

comply with Kozel was a departure from the essential requirements of law, it was the

requirement that Coconut Grove produce documents it may not otherwise have been

required to produce which could not be remedied on appeal, thus giving the Third District

jurisdiction to consider the petition.

       Having failed to demonstrate how the injury could not be remedied on appeal or to

even make anything more than a conclusory statement to that effect, petitioner has failed

to properly invoke this court’s jurisdiction; therefore, the petition must be DISMISSED.

ROBERTS and ROWE, JJ., CONCUR.




                                             4
