Kessel Construction Corp. v. Clark-Haney Development Team

Citations: 487 So. 2d 1123; 11 Fla. L. Weekly 897; 1986 Fla. App. LEXIS 7293Docket: No. 85-2341

Court: District Court of Appeal of Florida; April 15, 1986; Florida; State Appellate Court

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A petition for writ of common law certiorari was submitted to review a non-final order from the circuit court, which was denied. The denial was based on the petitioners not meeting the two required grounds for such a writ. Several subcontractors, including Robertson-Geller Drywall Contractors, Gagnon Construction Company, Acousti Engineering Company of Florida, and Sharsand Associates, Inc., initiated a lawsuit against Kessel Construction Company regarding unpaid sums from their contracts for the Palm Beach County administrative complex project. The subcontractors also sued Aetna Insurance Company based on Kessel’s performance bond. Kessel and Aetna filed counterclaims against the subcontractors on three theories: contractual indemnity, common law indemnity, and contribution. The trial court ruled in favor of Gagnon, dismissing the common law indemnity and contribution claims but allowing the contractual indemnity claim to proceed. Other subcontractors subsequently sought similar dismissals, which the court granted, but there were errors in the written order. The parties agreed that counts II and III of the counterclaims against the subcontractors were dismissed with prejudice. The judge noted that these counts are interrelated with the main suit, and thus, the order is not appealable as a partial final judgment under Florida Rule of Appellate Procedure 9.110(k) or as a non-final order under rule 9.130(3). The review could only occur through certiorari. Additionally, the judge referenced Chief Justice Boyd’s distinction between a "departure from the essential requirements of law" and legal error, emphasizing that the trial court's actions did not constitute such a departure. Consequently, any legal error would be addressed in a plenary appeal, raising the question of whether the petitioner could obtain adequate relief through that avenue.

Petitioners argue that the dismissal with prejudice of their common law indemnity and contribution counts against subcontractors creates irreparable harm that cannot be addressed through plenary appeal. They assert that if the dismissals are reversed, a second trial would be necessary to determine liability among joint tortfeasors, potentially leading to inconsistent findings by different juries regarding the subcontractors' liability. They highlight that if they were found vicariously liable in the first suit, they would be required to secure a supersedeas bond during the appeal for the counterdefendants. However, the court notes that the costs associated with trial and appeal do not constitute damages eligible for certiorari relief, referencing *Siegel v. Abramowitz*. The court finds the petitioners' claims of sustaining damages to be speculative, as the outcomes of the trials and the nature of Kessel's liability are uncertain. The possibility that a second jury may not favor petitioners does not demonstrate a lack of adequate remedy. The court emphasizes that speculative harm does not meet the criteria for certiorari and states that any errors made by the court can be rectified through plenary appeal. A significant example of irreparable harm is contrasted, illustrating that the petitioners' situation does not rise to that level of injury.