Carillon South v. Diamond

Full title: Carillon South Joint Venture, LLC, a Florida limited liability company…

Court: District Court of Appeal of Florida, Third District

Date published: May 11, 2011

No. 3D11-795 (Fla. Dist. Ct. App. May. 11, 2011)

Opinion

No. 3D11-795.

Opinion filed May 11, 2011.

A Case of Original Jurisdiction — Mandamus. Lower Tribunal No. 09-60982.

Berman Rennert Vogel Mandler, Jill Nexon Berman and Jason R. Block, for petitioner.

Reiner Reiner, and David P. Reiner, for respondent.

Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.

ROTHENBERG, J.Page 2

Carillon South Joint Venture, LLC ("Carillon") petitions this Court for a writ of mandamus to compel the trial court to vacate its sua sponte order granting a mistrial, and thereafter, to enter a judgment reflecting the jury's unanimous verdict in favor of Carillon and against Bret Diamond. In the alternative, Carillon petitions this Court for a writ of certiorari, seeking to quash the order granting a mistrial, and remand for entry of judgment in conformity with the jury's verdict.

Because we conclude that the trial court's sua sponte order granting a mistrial is not a ministerial act, but rather a discretionary act, we deny Carillon's petition for a writ of mandamus. See Architectural Sheet Metal, Inc. v. RLI Ins. Co., 936 So. 2d 1181, 1182 (Fla. 5th DCA 2006) ("[M]andamus can only be used to enforce, not establish, a legal right. The official duty in question must be ministerial and not discretionary.") (citations omitted). Further, although we appreciate the inconvenience, costs, and hardships associated with the possibility of having to try a case twice, we are bound by prior case law concluding that the possibility of having to try a case twice does not constitute irreparable harm. See Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998). Accordingly, we also dismiss Carillon's petition for writ of certiorari as this Court lacks jurisdiction.

In denying the petition for writ of mandamus and dismissing the petition for writ of certiorari, we do so without prejudice to Carillon's right to seek appellate relief by direct appeal upon the trial court's issuance of a written order granting a new trial pursuant to rule 1.530(d), (f), Florida Rules of Civil Procedure.

Petition for writ of mandamus denied without prejudice; petition for writ of certiorari dismissed without prejudice; and remanded for issuance of a written order that complies with rule 1.530(f).

Not final until disposition of timely filed motion for rehearing.