39 Fla. L. Weekly D1397a
Mandamus — Certiorari — Review of trial court’s denial of
motion for summary judgment — Petition for writ of mandamus dismissed because
petitioner cannot assert that trial court violated any clear legal right of
petitioner, or that trial court had an indisputable legal duty to grant motion
for summary judgment — Petitioner is not entitled to certiorari relief because
he cannot assert that trial court departed from essential requirements of law in
denying motion for summary judgment, or that petitioner suffered irreparable
harm
motion for summary judgment — Petition for writ of mandamus dismissed because
petitioner cannot assert that trial court violated any clear legal right of
petitioner, or that trial court had an indisputable legal duty to grant motion
for summary judgment — Petitioner is not entitled to certiorari relief because
he cannot assert that trial court departed from essential requirements of law in
denying motion for summary judgment, or that petitioner suffered irreparable
harm
ALEXANDER EUGENIO MOSKOVITS, Petitioner, vs. CRYSTAL HOUSE, INC., et al.,
Respondents. 3rd District. Case No. 3D14-684. L.T. Case No. 13-15295. Opinion
filed July 2, 2014. A Writ of Certiorari to the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge. Counsel: Alexander E. Moskovits, in proper
person. Becker & Poliakoff, P.A., and Michael C. Gongora; Marshall Dennehey
Warner Coleman & Goggin, and Andrew J. Marchese (Ft. Lauderdale); Robert N.
Pelier, for appellees.
Respondents. 3rd District. Case No. 3D14-684. L.T. Case No. 13-15295. Opinion
filed July 2, 2014. A Writ of Certiorari to the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge. Counsel: Alexander E. Moskovits, in proper
person. Becker & Poliakoff, P.A., and Michael C. Gongora; Marshall Dennehey
Warner Coleman & Goggin, and Andrew J. Marchese (Ft. Lauderdale); Robert N.
Pelier, for appellees.
(Before WELLS, LOGUE and SCALES, JJ.)
(PER CURIAM.) Petitioner, Alexander Eugenio Moskovits, the plaintiff below,
has filed an original proceeding with this court for mandamus relief, certiorari
relief, and “extraordinary review from the non-final denial” of Moskovits’
motion for summary judgment. We dismiss the petition.
has filed an original proceeding with this court for mandamus relief, certiorari
relief, and “extraordinary review from the non-final denial” of Moskovits’
motion for summary judgment. We dismiss the petition.
In the trial court, Moskovits filed an amended complaint seeking to void a
settlement agreement that he and Defendants-Respondents, Crystal House, a
condominium association, entered into in 2007.
settlement agreement that he and Defendants-Respondents, Crystal House, a
condominium association, entered into in 2007.
Crystal House filed motions to dismiss Moskovits’ amended complaint on
statute of limitations grounds, and Moskovits filed a motion for summary
judgment, asserting that the summary judgment evidence before the trial court
established that the settlement agreement was the result of “extrinsic fraud.”
statute of limitations grounds, and Moskovits filed a motion for summary
judgment, asserting that the summary judgment evidence before the trial court
established that the settlement agreement was the result of “extrinsic fraud.”
At a hearing held on February 26, 2014, the trial court heard the motions,
and subsequently entered an order denying both: (i) Crystal House’s motions to
dismiss, and (ii) Moskovits’ motion for summary judgment.
and subsequently entered an order denying both: (i) Crystal House’s motions to
dismiss, and (ii) Moskovits’ motion for summary judgment.
We dismiss Moskovtis’ petition because he has failed to assert — and indeed
cannot assert — that the trial court violated any clear legal right of
Moskovits, or that the trial court had an indisputable legal duty to grant his
motion for summary judgment. See Bailem v. State, 984 So. 2d 604,
606 (Fla. 3d DCA 2008) (“To be entitled to a writ of mandamus, the petitioner
must have a clear legal right to the requested relief, the respondent must have
an indisputable legal duty to perform the requested action, and the petitioner
must have no other adequate remedy.” (citation omitted)); Fla. Caucus of
Black State Legislators, Inc. v. Crosby, 877 So. 2d 861, 863 (Fla. 1st DCA
2004) (stating an “extraordinary writ of mandamus may not be used to establish
the existence of an enforceable right, but rather only to enforce a right
already clearly and certainly established in law” (citation omitted)).
cannot assert — that the trial court violated any clear legal right of
Moskovits, or that the trial court had an indisputable legal duty to grant his
motion for summary judgment. See Bailem v. State, 984 So. 2d 604,
606 (Fla. 3d DCA 2008) (“To be entitled to a writ of mandamus, the petitioner
must have a clear legal right to the requested relief, the respondent must have
an indisputable legal duty to perform the requested action, and the petitioner
must have no other adequate remedy.” (citation omitted)); Fla. Caucus of
Black State Legislators, Inc. v. Crosby, 877 So. 2d 861, 863 (Fla. 1st DCA
2004) (stating an “extraordinary writ of mandamus may not be used to establish
the existence of an enforceable right, but rather only to enforce a right
already clearly and certainly established in law” (citation omitted)).
Similarly, Moskovits has failed to assert — and again cannot assert — that
in denying his summary judgment motion, the trial court departed from the
essential requirements of law, or that he suffered any type of irreparable harm,
so as to entitle him to certiorari relief. See Flores v. Sanchez,
39 Fla. L. Weekly D653, D654 (Fla. 3d DCA Mar. 26, 2014) (quoting Rodriguez
v. Miami-Dade Cnty., 117 So. 3d 400, 404 (Fla. 2013) (explaining “[t]he
threshold question that must be reached first is whether there is a material
injury that cannot be corrected on appeal, otherwise termed as irreparable harm”
and whether the order under review constitutes a departure from the essential
requirements of the law)).
in denying his summary judgment motion, the trial court departed from the
essential requirements of law, or that he suffered any type of irreparable harm,
so as to entitle him to certiorari relief. See Flores v. Sanchez,
39 Fla. L. Weekly D653, D654 (Fla. 3d DCA Mar. 26, 2014) (quoting Rodriguez
v. Miami-Dade Cnty., 117 So. 3d 400, 404 (Fla. 2013) (explaining “[t]he
threshold question that must be reached first is whether there is a material
injury that cannot be corrected on appeal, otherwise termed as irreparable harm”
and whether the order under review constitutes a departure from the essential
requirements of the law)).
As acknowledged by Moskovits on the face of his petition, the trial court’s
order denying his summary judgment motion was a non-final order. Only those
non-final orders enumerated in Florida Rule of Appellate Procedure 9.130 are
subject to interlocutory review, and an order denying a motion for summary
judgment is not delineated by the rule. See Castillo v. Deutsche Bank
Nat’l Trust Co., 57 So. 3d 965, 966 (Fla. 3d DCA 2011) (“[I]nterlocurotry
appeals of non-final orders denying motions for summary judgment are not
permitted under [Rule 9.130].”).
order denying his summary judgment motion was a non-final order. Only those
non-final orders enumerated in Florida Rule of Appellate Procedure 9.130 are
subject to interlocutory review, and an order denying a motion for summary
judgment is not delineated by the rule. See Castillo v. Deutsche Bank
Nat’l Trust Co., 57 So. 3d 965, 966 (Fla. 3d DCA 2011) (“[I]nterlocurotry
appeals of non-final orders denying motions for summary judgment are not
permitted under [Rule 9.130].”).
Petition dismissed.
* * *