Opinion
No. 1D19-4219
04-09-2021
CAVALRY PORTFOLIO SERVICES, LLC; Andreu, Palma, Lavin & Solis, PLLC; and Desiree M. Lavin, Esquire, Petitioners, v. Dorothy HODGES, Respondent.
Ernest H. Kohlmyer, III, and Rachel M. Ortiz of Shepard, Smith, Kohlmyer & Hand, P.A., Maitland, for Petitioner Cavalry Portfolio Services, LLC; Dale T. Golden of Golden, Scaz, Gagain, PLLC, Tampa, for Petitioners Andreu, Palma, Lavin & Solis, PLLC and Desiree M. Lavin, Esquire. Mitchell A. Stone of Mitchell A. Stone, P.A., Jacksonville, for Respondent.
Ernest H. Kohlmyer, III, and Rachel M. Ortiz of Shepard, Smith, Kohlmyer & Hand, P.A., Maitland, for Petitioner Cavalry Portfolio Services, LLC; Dale T. Golden of Golden, Scaz, Gagain, PLLC, Tampa, for Petitioners Andreu, Palma, Lavin & Solis, PLLC and Desiree M. Lavin, Esquire.
Mitchell A. Stone of Mitchell A. Stone, P.A., Jacksonville, for Respondent.
Per Curiam.
Cavalry Portfolio Services, LLC; Andreu, Palma, Lavin & Solis, PLLC; and Desiree Lavin (Petitioners), seek certiorari review of an order denying their motion to dismiss Respondent Dorothy Hodges’ lawsuit against them. She filed suit after Petitioners served a writ of garnishment on her employer, but then learned that she was the wrong Dorothy Hodges. Hodges sued for wrongful garnishment, negligence, and a statutory debt collection violation. Petitioners moved to dismiss Hodges’ complaint on grounds of litigation immunity, arguing they were immune from the lawsuit itself. The trial court denied the motion and Petitioners now seek review of that order.
Our threshold inquiry is whether we have certiorari jurisdiction; i.e., whether Petitioners have established irreparable harm. Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 215 (Fla. 1998) ("[I]t is settled law that, as a condition precedent to invoking a district court's certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal."). "Certiorari is generally not available to review an order denying a motion to dismiss because the petitioner has a remedy available through direct appeal of the final judgment." See Palazzi v. State , 307 So. 3d 998, 1001 (Fla. 1st DCA 2020). But "[w]hen the trial court denies a motion to dismiss on immunity grounds, certiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless." See James v. Leigh , 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014).
Petitioners cannot show irreparable harm because they are not entitled to immunity from Hodges’ claim of wrongful garnishment. See Debrincat v. Fischer , 217 So. 3d 68, 70–71 (Fla. 2017) (explaining that applying litigation immunity to bar action for malicious prosecution would "eviscerate this long-established cause of action"); see also Strickland v. Com. Loan Co. of Jacksonville , 158 So. 2d 814, 815 (Fla. 1st DCA 1963) (recognizing that action for wrongful garnishment parallels that for malicious prosecution); Barniv v. BankTrust , 579 F. App'x 719, 720 (11th Cir. 2014) ("Under Florida law, the tort of wrongful garnishment has the same elements as the tort of malicious prosecution.") (citing Adams v. Whitfield , 290 So. 2d 49, 51 (Fla. 1974) (a malicious prosecution case)). For this reason, we lack jurisdiction and dismiss the petition.
DISMISSED .
Rowe, Makar, and Kelsey, JJ., concur.