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Certiorari Review of Orders Denying Discovery in Civil Cases, Part I

Appellate Practice

The district courts of appeal state that, as a general rule, they rarely have common-law certiorari jurisdiction over orders that deny discovery because such orders do not work an irreparable harm.[1] Yet the district courts also recognize an exception: “One exceedingly narrow exception to the general rule exists where ‘the requested discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.’”[2]

Although the exception has been the subject of many reported decisions in civil cases, I did not find a comprehensive treatment of the exception in the decisional law or in secondary authorities.[3] I strive to afford that treatment in this two-part column. Part I summarizes the history of the writ of certiorari, explains certiorari jurisdiction, traces the development of the exception, and states the justification the courts have offered. Part II reviews the strengths and weaknesses of the exception, explores other issues such as the interaction of the exception with harmless error, provides examples of its application, and offers concluding thoughts — that in their application of the exception, the district courts have often strayed beyond certiorari’s jurisdictional boundaries.

In writing this column, I attempted to locate every reported case in Florida on the exception. My research turned up about 140 opinions, though I cannot warrant complete success. Additionally, it is important to note that cases often used to deny petitions rather than dismiss them, even when the disposition was on jurisdictional grounds. Now the courts use precise terms more often than they do not.[4] Throughout this column, I use “dismissed” even when the decision says the disposition is “denied” if the court found lack of irreparable harm, the test of certiorari jurisdiction.

History of the Writ of Certiorari

“Certiorari” is legal Latin for “to be more fully informed.”[5] The writ’s history is convoluted. It developed in England after the Norman Conquest in the 11th century, after which power became more centralized in the office of the king. Among other things, it was used to transfer the records of a case from one forum to a superior forum, usually a royal court, to review the proceedings. The writ became a wide-ranging tool for the king’s courts to assert authority by transferring cases to correct injustices. After the dislocations of the early modern era, the king’s prerogative powers were circumscribed and most judicial functions were transferred to a common-law court.[6] There, the writ was used to ensure that lower courts followed the law governing the exercise of jurisdiction.[7] In America, the common law writ of certiorari became something of “an independent appellate remedy,” though one that is extraordinary, discretionary, and available before judgment only when there is no other adequate remedy.[8]

The 1838 Constitution of the State of Florida gave the Florida Supreme Court appellate jurisdiction as well as the jurisdiction to issue certain identified writs and “such other remedial and original writs, as may be necessary to give it a general superintendence and control of all other Courts.”[9] In Halliday v. Jacksonville & Alligator Plank Road Co., 6 Fla. 304, 305 (1855), the court referred to this provision and said: “It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment of justice.” Ultimately, the court dismissed the case because the petitioner had “an ample remedy” by appeal.[10]

Halliday was the first time the court recognized its common-law certiorari jurisdiction.[11] However, jurisdiction was limited to final judgments of lower appellate courts.[12] Over time, the court expanded the scope of jurisdiction, eventually to include review of a trial court’s nonfinal order.[13] In 1956, the constitution was amended to create the district courts of appeal, which along with the circuit courts now had exclusive common law certiorari jurisdiction.[14]

Certiorari Jurisdiction or “Irreparable Harm”

As the Supreme Court explained in Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011), “Certiorari review is intended to fill the interstices between direct appeal and the other prerogative writs and allow a court to reach down and halt a miscarriage of justice where no other remedy exists; it was never intended to redress mere legal error.”[15] Certiorari is an extraordinary remedy that parties should not use to circumvent the Supreme Court’s limited grant of appellate jurisdiction to the district courts over specific nonfinal orders in Florida Rule of Appellate Procedure 9.130.[16] The First District urged caution with certiorari 30 years ago: “The most recent pronouncement from the Supreme Court of Florida on certiorari jurisdiction suggests, if anything, the district courts of this state should be even more conservative in accepting certiorari jurisdiction to review interlocutory orders than they have been in the past.”[17]

The petitioner has a high burden to obtain common law certiorari relief. He must establish three elements: “(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 [plenary] appeal.”[18] The latter two elements are the tests used to determine certiorari jurisdiction and courts often refer to them together as “irreparable harm.”[19]

Orders denying discovery typically do not result in irreparable harm because the aggrieved party can appeal the final judgment to the district court, which on plenary review can deem the denial error, reverse the judgment, and remand for further proceedings in which that discovery is available.[20] Thus, the error can be corrected in a post-judgment appeal. Moreover, the courts have consistently held that a party’s unnecessary expenditure of time and money does not equate to irreparable harm, and orders denying discovery seem to fit squarely within that principle.[21]

Given the history of the writ of certiorari and the consistently stated principle that the writ should rarely be available, how did we get the “blanket rule,” as one judge called it, [22] that an order denying discovery of material evidence results in an irreparable harm?

Development of the Exception

The earliest reported decision I could locate involving certiorari review of an order denying discovery is the one-paragraph opinion in Dade County v. Bosch, 133 So. 2d 578 (Fla. 3d DCA 1961). There, the trial court quashed a notice of taking the deposition of a defense expert because the expert had previously consulted with the plaintiff’s attorney on the case; according to the trial court, the doctor’s opinion was the plaintiff’s work product. The defendant filed a petition for writ of certiorari. Ultimately granting the petition, the Third District wrote: “In causes similar to this, this court and others have assumed jurisdiction of such writs,” citing American Ladder & Scaffold Co. v. Eadie, 120 So. 2d 65 (Fla. 3d DCA 1960), and City of Sarasota v. Colbert, 97 So. 2d 872 (Fla. 2d DCA 1957).[23] “Similar” was doing a lot of work: Both American Ladder and Colbert involved review of orders granting discovery, a different situation presenting a different concern.[24]

Although what is now identified as an exception lacked an articulated justification until 1980 (see next section), each district court recognized soon after its creation that it could review orders denying discovery in certain circumstances: the Third District in 1961; the Second District in 1963;[25] the First District in 1966;[26] the Fourth District in 1971;[27] and the Fifth District in 1980.[28] This idea then became entrenched in their jurisprudence as the “exceedingly narrow exception” described by the Third District last year.[29] (I found no Supreme Court decision addressing it.) The life of the exception in two districts, the Fourth and the Fifth, is particularly noteworthy.

The Fourth District’s Caselaw

The 1971 decision of the Fourth District is Brennan v. Board of Public Instruction of Broward County, 244 So. 2d 463 (Fla. 4th DCA 1971). The case involved the denial of depositions of three employees of the defendant in a personal injury action; the district court quashed the order. It said:

No question is raised by the respondents (the defendants below) as to the propriety of a review of this order by certiorari. Nevertheless such review is supported by the authority of Brooks v. Owen, Fla. 1957, 97 So. 2d 693; Dade County, etc. v. Bosch, Fla. App. 1961, 133 So. 2d 578; Ormond Beach First National Bank v. J. M. Montgomery Roofing Company, Inc., Fla. App. 1966, 189 So. 2d 239; and Leithauser v. Harrison, Fla. App. 1964, 168 So. 2d 95, 97.[30]

Brooks did not involve an order denying discovery, but the other three did.

Following Brennan, the Fourth District’s decisions did not consistently recognize that orders denying discovery could be reviewed, as the court acknowledged in a later en banc decision discussed in a couple paragraphs.

On the one hand, we have the court’s statement in Gold Coast Raceway v. Ehrenfeld, 392 So. 2d 1002 (Fla. 4th DCA 1981): “We have held that certiorari is a permissible method of seeking review of orders involving discovery under appropriate circumstances.” The court cited its earlier decision in Murray Van & Storage v. Murray, 343 So. 2d 61 (Fla. 4th DCA 1977). On the other hand, we have the court’s statement in Barrett v. Callaway, 842 So. 2d 1056 (Fla. 4th DCA 2003): “This court…has consistently maintained the view that ‘plenary appeal provides an adequate remedy to address the legal propriety of an order precluding discovery.’” The court was quoting Calfin v. McInnis, 683 So. 2d 1137 (Fla. 4th DCA 1996) (mem.).[31]

On top of this, a later three-judge panel of the Fourth District stated it was receding from Gold Coast Raceway in U.S. Fidelity & Guaranty Co. v. Graham, 404 So. 2d 863 (Fla. 4th DCA 1981), “to the extent that it authorizes certiorari review without a demonstration of material injury not remediable by appeal after final judgment.” The court in Graham also certified conflict with a (factually distinguishable) Fifth District decision, Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla. 5th DCA 1980), that will be addressed in the discussion of the Fifth District’s cases. The Supreme Court denied review.[32]

The en banc decision alluded to above is Power Plant Entertainment v. Trump Hotels & Casino Resorts Development Co., 958 So. 2d 565 (Fla. 4th DCA 2007) (en banc). In Power Plant, the court “voted to en banc this case solely for the purpose of announcing that we do not have a hard and fast rule against reviewing orders denying discovery,” “join[ing] our sister courts [Second, Third, and Fifth districts] which have occasionally, but not routinely, granted review.”[33] The Fourth District warned attorneys that its holding was not an open invitation, however, “few orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review.”[34] As an example of what would justify certiorari review, the district court pointed to the Fifth District case of Beekie v. Morgan, 751 So. 2d 694 (Fla. 5th DCA 2000), where the trial court did not allow the plaintiff in a car accident case to take the deposition of the defendant driver. “On the other hand,” the court continued, “we do not expect to receive petitions from denials of fishing expeditions.”[35] The Power Plant court also addressed U.S. Fidelity. It said that, while a three-judge panel claimed it was partially receding from Gold Coast Raceway, the Fourth District had not actually receded from either that case or Brennan.[36]

Since Power Plant, the Fourth District has issued reported decisions granting one petition and dismissing three.[37]

The Fifth District’s Caselaw

In 1980, the Fifth District decided Colonial Penn Insurance Co. v. Blair, 380 So. 2d 1305, 1305-06 (Fla. 5th DCA 1980). There, over a dissent on jurisdiction, the court quashed an order denying production sought by the defendant in a car accident case, namely, the transcription of a traffic-court hearing involving the same accident, created at the insistence of the plaintiff. The court did not cite any case involving the denial of discovery.

The same year, the court decided Travelers Indemnity. Citing Brooks, the court quashed an order denying discovery. Travelers Indemnity involved a lawsuit against the plaintiff’s insurer over its refusal to pay a claimed loss arising from the plaintiff’s ex-wife taking certain possessions pursuant to a divorce decree.[38] The plaintiff alleged the possessions were stolen, and the insurer sought the appointment of a commissioner to take the ex-wife’s deposition in Ohio, a request the trial court denied. The district courts frequently cite this decision.

From Travelers Indemnity until 2012, the Fifth District recognized it had certiorari jurisdiction to review orders denying discovery, whether it granted,[39] denied,[40] or dismissed[41] the petition. There are also decisions involving the distinguishable situation of an order striking trial witnesses, one granting review (Premark International v. Pierson) and two dismissing (Ali Investments v. First American Title Insurance and Heathrow Master Association v. Zulia).[42]

The Fifth District resolved the inconsistency presented by those three cases in its en banc Bill Kasper Construction v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012), decision. However, while the opinion discussed those three cases, it also included a “see also” citation to Travelers Indemnity as involving similar reasoning, even though that case involved an order denying discovery, not striking a trial witness. As it had been applied to those latter orders, the Fifth District said the reasoning was unpersuasive. The court said: “When an order striking testimony is entered, the aggrieved party can proffer the stricken testimony, thereby enabling this court, on final appeal, to determine how the testimony could have affected the result of the trial.”[43] So the court receded from Premark and Heathrow. Yet it also receded from Travelers Indemnity. Judge Torpy wrote an interesting separate opinion concurring and concurring specially that is discussed in Part II.

Notwithstanding the court receding from Travelers Indemnity, the Fifth District’s cases continue to recognize it has jurisdiction to review orders that deny the discovery of material evidence.[44] Interestingly, those cases do not cite Bill Kasper, but cases from other districts. And other districts have since cited Travelers Indemnity, but without noting its subsequent history.[45]

Justification for the Exception

The first case to offer any real, overarching justification for certiorari review of orders denying discovery of material evidence is 1980’s Travelers Indemnity.[46] That means each district court recognized the exception before any explained why such orders result in irreparable harm. In Travelers Indemnity, the Fifth District said:

It is difficult to understand how the denial of the right to take the testimony of an alleged material witness can be remedied on appeal since there would be no practical way to determine after judgment what the testimony would be or how it would affect the result. Certiorari is the proper remedy here.[47]

Other district courts have cited this justification.[48] However, while they do so, the courts usually do not proceed to determine whether, in the particular case, denial of the sought discovery would thwart appellate review.[49]


Over the decades, our district courts of appeal have developed an exception to the general rule that orders denying discovery are not reviewable by certiorari. The exception, as it has been applied, seems inconsistent with the larger body of law on the writ of certiorari, and the district courts have not adequately justified it. In Part II of this column, I explore the strengths and weaknesses of the exception and other issues, like the interaction between the exception and harmless error.[50] I also discuss decisions where review of an order denying discovery was sought to show how the district courts have applied it. Finally, I offer an overall conclusion and outline some paths forward.

[1] See, e.g., Redgate v. Nat’l Soc. for the Prevention of Blindness, 389 So. 2d 1074 (Fla. 4th DCA 1980) (mem.); William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 Fla. L. Rev. 207, 224 & n.136 (1977) (on file with author).

[2] Am. Prime Title Servs. v. Wang, 317 So. 3d 1183, 1186 (Fla. 3d DCA 2021) (quoting Westerbeke Corp. v. Atherton, 224 So. 3d 816, 821 (Fla. 2d DCA 2017) (quoting Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009))).

[3] Secondary authorities touching on the subject are Philip J. Padovano, Florida Appellate Practice §30:5 nn.17-18 and accompanying text (2021 ed.); Philip J. Padovano, Florida Civil Practice §10:15 nn.7-8 and accompanying text (2021 ed.); Valeria Hendricks, Writ of Certiorari in Florida, Florida Appellate Practice §11(C)2. (Fla. Bar, 11th ed. 2020); Chris W. Altenbernd & Jamie Marcario, Certiorari Review of Nonfinal Orders: Trying on a Functional Certiorari Wardrobe, Part II, 86 Fla. B. J. 14, 16 (Mar. 2012); Matthew J. Conigliaro, The Continuing Story of Certiorari, 83 Fla. B. J. 38, 40-41 (Dec. 2009); and Sylvia H. Walbolt & Susan L. Landy, Common Law Certiorari — Where an Appeal Will Not Provide an Adequate Remedy, 70 Fla. B. J. 56, 57 (Oct. 1996).

[4] See Bared & Co. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996) (en banc).

[5] Certiorari, Black’s Law Dictionary (11th ed. 2019); see also certiorari, Online Etymology Dictionary,

[6] See generally Jerome J. Hanus, Certiorari and Policy-Making in English History, 12:2 Am. J. Legal History 63 (Apr. 1968); Harold Weintraub, English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus, 9 N.Y. L. Forum 478, 503 (1963); Alto Adams & George John Miller, Origins and Current Florida Status of the Extraordinary Writs, 4 Fla. L. Rev. 421, 425-30, 432-34 (1951); S.A. de Smith, The Prerogative Writs, 11:1 Cambridge L. J. 40, 45-48 (1951); Frank J. Goodnow, The Writ of Certiorari, 6:3 Pol. Sci. Q. 493 (Sept. 1891). All on file with author.

[7] Weintraub, English Origins of Judicial Review by Prerogative Writ at 516.

[8] Goodnow, The Writ of Certiorari at 500-04; see also Haines City Comm. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995).

[9] Fla. Const. art. V, §2 (1838); Fla. Const. art. V, §2 (1865).

[10] Halliday, 6 Fla. at 305.

[11] Heggs, 658 So. 2d at 525.

[12] Anthony Russo, Ezequiel Lugo & Jared Krukar, Certiorari Redefined: Would the “Functional Restatement” Function, 42 Stetson L. Rev. 403, 407 (2013).

[13] Id. at 406-08 (citing Kilgore v. Bird, 6 So. 2d 541 (Fla. 1942)).

[14] Robinson v. State, 132 So. 2d 3, 5 (Fla. 1961); Haddad, The Common Law Writ of Certiorari in Florida at 209-11; Russo et al., Certiorari Redefined at 408; Robert J. Telfer III, A Historical Comparison of Certiorari Review Standards in Florida’s Appellate Courts, 42 Stetson Law Rev. 525, 531-32 (2013); Fla. Const. art. V, §§4(2), 5(3) (1885, as amended); Fla. Const. art. V, §§3(b), 4(b)(3) (1968 rev.).

[15] Cleaned up.

[16] Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 349 (Fla. 2012); Bd. of Trustees of Internal Improvement Fund v. Am. Educ. Enters., 99 So. 3d 450, 455 (Fla. 2012).

[17] Cont’l Equities Inc. v. Jacksonville Transp. Auth., 558 So. 2d 154, 155 (Fla. 1st DCA 1990) (citing Martin-Johnson Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987), superseded by statute on other grounds as recognized in Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047, 1052 (Fla. 2016)).

[18] Parkway Bank v. Fort Myers Armature Works, 658 So. 2d 646, 648 (Fla. 2d DCA 1995) (citation and footnote omitted).

[19] Citizens Prop., 104 So. 3d at 351.

[20] Padovano, Florida Civil Practice at §10:15; Power Plant Entm’t v. Trump Hotel & Casino Resorts Dev. Co., 958 So. 2d 565, 567 (Fla. 4th DCA 2007) (en banc).

[21] Martin-Johnson, 509 So. 2d at 1100; Walgreen Co. v. Rubin, 229 So. 3d 418, 421 (Fla. 3d DCA 2017); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975).

[22] Adkins v. Sotolongo, 227 So. 3d 717, 722 (Fla. 3d DCA 2017) (Luck, J., concurring).

[23] Bosch, 133 So. 2d at 578.

[24] Marrero v. Rea, 312 So. 3d 1041, 1047-48 & n.3 (Fla. 5th DCA 2021) (“Those situations are often described as ‘letting the cat out of the bag,’ because there is no practical way to eliminate knowledge or information gained by an opponent through what is later ruled to be inappropriate discovery.”).

[25] Girten v. Bouvier, 155 So. 2d 745 (Fla. 2d DCA 1963) (Dismissing but stating: “We do not find that the interrogatories which are the subject of this petition bring it either within the rule of exceptional cases or within a situation which would require ‘special dispensation’ as in Kilgore v. Bird, 1942, 149 Fla. 570, 6 So. 2d 541, so characterized in Wolf v. Industrial Supply Corp., supra.”); see also Leithauser v. Harrison, 168 So. 2d 95 (Fla. 2d DCA 1964) (granting and citing, inter alia, Kilgore).

[26] Ormond Beach First Nat’l Bank v. J.M. Montgomery Roofing, 189 So. 2d 239 (Fla. 1st DCA 1966). This case appears to be the first in a line involving limitations on the time and/or place of depositions.

[27] Brennan v. Bd. of Pub. Instruction of Broward Cnty., 244 So. 2d 463 (Fla. 4th DCA 1971).

[28] Colonial Penn Ins. Co. v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980).

[29] Am. Prime Title Servs. v. Wang, 317 So. 3d 1183, 1186 (Fla. 3d DCA 2021).

[30] Brennan, 244 So. 2d at 463.

[31] See also Wally v. Nat’l City Mortg., 867 So. 2d 444 (Fla. 4th DCA 2004) (mem.) (citing Barrett).

[32] Caldwell-Scott Constr. v. Graham, 419 So. 2d 1195 (Fla. 1982) (table). In Calfin, the Fourth District rejected the petitioner’s reliance on Travelers Indemnity pointing to the certification of conflict in U.S. Fidelity. 683 So. 2d at 1137-38. In Young, Stern & Tannenbaum, P.A. v. Smith, 416 So. 2d 4, 5 (Fla. 3d DCA 1982), a split panel of the Third District acknowledged the conflict but said it believed Gulf Coast Raceway was correctly decided and rejected U.S. Fidelity’s rationale. In Esman v. Board of Regents of the State of Florida, the First District relied on U.S. Fidelity, employing a “see” signal, followed by a “but cf.” citation of Travelers Indemnity. 425 So. 2d 156, 157 (Fla. 1st DCA 1983). However, the First District (correctly) stated that its decision did not conflict with Travelers Indemnity. Id. at 157, n.2.

[33] Power Plant, 958 So. 2d at 566-67.

[34] Id. at 567.

[35] Id.

[36] Id. at 566. At the time U.S. Fidelity was decided, it was unsettled whether a three-judge panel had the authority to recede from a prior panel’s decision. See In re Rule 9.331, 416 So. 2d 1127 (Fla. 1982).

[37] Granting: Herman v. J.P. Morgan Sec., 35 So. 3d 188 (Fla. 4th DCA 2010) (mem.). Dismissing: Romanos v. Caldwell, 980 So. 2d 1091 (Fla. 4th DCA 2008); Wal-Mart Stores v. Strachan, 82 So. 3d 1052 (Fla. 4th DCA 2011); Preudhomme v. Bailey, 204 So. 3d 91 (Fla. 4th DCA 2016) (in part).

[38] Travelers Indem., 388 So. 2d at 649-50.

[39] Carroll Contracting v. Edwards, 528 So. 2d 951 (Fla. 5th DCA 1988); Helmick v. McKinnon, 657 So. 2d 1279 (Fla. 5th DCA 1995); Beekie, 751 So. 2d 694; Towers v. City of Longwood, 960 So. 2d 845 (Fla. 5th DCA 2007).

[40] Colonies Condo. Ass’n v. Clairview Holdings, 419 So. 2d 725 (Fla. 5th DCA 1982).

[41] Indus. Tractor Co. v. Bartlett, 454 So. 2d 1067 (Fla. 5th DCA 1984); Palmer v. WDI Sys., 588 So. 2d 1087 (Fla. 5th DCA 1991); Thompson v. Deane, 713 So. 2d 1215 (Fla. 5th DCA 1997); Dreggors v. Employers Ins. of Wausau, 16 So. 3d 309 (Fla. 5th DCA 2009) (per curiam denial with special concurrence); State Farm Mut. Auto. Ins. Co. v. German, 12 So. 3d 1286 (Fla. 5th DCA 2009).

[42] Premark Int’l v. Pierson, 823 So. 2d 859 (Fla. 5th DCA 2002) (quashing order striking of party’s sole expert witness), receded from by Bill Kasper Constr. v. Morrison, 93 So. 3d 1061 (Fla. 5th DCA 2012) (en banc); Ali Inv. v. First Am. Title Ins., 929 So. 2d 1154 (Fla. 5th DCA 2006) (dismissing petition seeking review of order limiting the witnesses a party could call at trial); Heathrow Master Ass’n v. Zulia, 52 So. 3d 811 (Fla. 5th DCA 2011) (quashing order striking defense expert witness in negligence action), receded from by Bill Kasper, 93 So. 3d 1061. See also the split decision in Sardinas v. Lagares, 805 So. 2d 1024 (Fla. 3d DCA 2001), where the Third District dismissed a petition seeking review of an order striking an expert witness.

[43] Bill Kasper, 93 So. 3d at 1062; see also Riano v. Heritage Corp. of S. Fla., 665 So. 2d 1142, 1144 (Fla. 3d DCA 1996).

[44] Boren v. Rogers, 243 So. 3d 448 (Fla. 5th DCA 2018); Hall v. Hall, 277 So. 3d 639 (Fla. 5th DCA 2019); Marrero v. Rea, 312 So. 3d 1041 (Fla. 5th DCA 2021).

[45] Toomey v. N. Tr. Co., 182 So. 3d 891, 893 (Fla. 3d DCA 2016) (quoting a case that cited Travelers Indem.); PDR Grayson Dental Lab v. Progressive Dental Reconstruction, 203 So. 3d 213, 214 (Fla. 1st DCA 2016) (quoting a case that quoted Travelers Indem.); Adkins v. Sotolongo, 227 So. 3d 717, 720 (Fla. 3d DCA 2017) (quoting a case that quoted Travelers Indemn.).

[46] In a case where the court granted review, it engaged in a case-specific analysis of irreparable harm that, as a result, is not generally applicable. Leithauser v. Harrison, 168 So. 2d 95 (Fla. 2d DCA 1964). In another, the court discussed the test for jurisdiction but summarily concluded the test was satisfied. Ormond Beach First Nat’l Bank v. J.M. Montgomery Roofing, 189 So. 2d 239 (Fla. 1st DCA 1966).

[47] Travelers Indem., 388 So. 2d at 650.

[48] See, e.g., Baldwin v. Shands Teaching Hosp. & Clinics, 45 So. 3d 118, 122 (Fla. 1st DCA 2010); Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232, 1234-35 (Fla. 2d DCA 2009); Criswell v. Best W. Int’l, 636 So. 2d 562 (Fla. 3d DCA 1994).

[49] Some that have: Verizon Bus. Network Servs. v. Fla. Dep’t of Corrections, 960 So. 2d 916, 917 (Fla. 1st DCA 2007); Royal Caribbean Cruises v. Cox, 974 So. 2d 462, 468 (Fla. 3d DCA 2008); Anderson v. Vander Meiden, 56 So. 3d 830, 832-33 (Fla. 2d DCA 2011); State Farm Mut. Auto. Ins. Co. v. Pace, 128 So. 3d 182, 185 (Fla. 5th DCA 2013); Boren v. Rogers, 243 So. 3d 448, 451 (Fla. 5th DCA 2018).

[50] An exploration that will draw on Padovano, Florida Appellate Practice at §30:5 n.18 and accompanying text; Bill Kasper, 93 So. 3d at 1063 (Torpy, J., concurring and concurring specially); and Adkins v. Sotolongo, 227 So. 3d 717, 720 (Fla. 3d DCA 2017) (Luck, J., concurring).


Adam RichardsonAdam Richardson practices appellate law as a shareholder in Burlington & Rockenbach, P.A., in West Palm Beach. Previously, he was a judicial clerk to Judge Robert M. Gross at the Fourth District Court of Appeal.

This column is submitted on behalf of the Appellate Practice Section, Kimberly M. Jones, chair, and Heather Kolinsky, editor.

Appellate Practice