Stockinger v. Zeilberger

Third District Court of Appeal

State of Florida

Opinion filed November 19, 2014.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-550

Lower Tribunal No. 11-2797

________________

Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude

Kuhtreiber,

Petitioners,

vs.

Ulrike A. Zeilberger, Personal Representative, Ulrike A. Zeilberger,

Individually, Dr. Rudolf Zeilberger, and Buro Fur Genealogie,

Assignee,

Respondents.

A Writ of Certiorari for Miami-Dade County, Bernard S. Shapiro, Judge.

Law Offices of Robin Bresky, and Michele K. Feinzig (Boca Raton), for

petitioners.

David Howard Goldberg, P.L., and David Howard Goldberg, for respondent

Ulrike A. Zeilberger; Golden & Cowan, P.A., and Paul M. Cowan, for respondent

Dr. Rudolf Zeilberger; Lawrence W. Livoti, P.A., and Lawrence W. Livoti (Fort

Lauderdale), for respondent Buro Fur Genealogie.

Before SUAREZ, ROTHENBERG, and LOGUE, JJ.

LOGUE, J.

Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude Kuhtreiber are

elderly residents of Austria who have filed a petition to be recognized as partial

heirs in the estate of the Rosina Hanko, which was probated in Miami-Dade

County, Florida. They assert that they are half-sisters of the deceased. The personal

representative of the estate has tried to depose them but to no avail. His attempts

have been frustrated allegedly because of the health and age of the claimants,

nuances in Austrian law, and other matters. After ruling on various motions filed

by the parties concerning the depositions, the trial court filed an interim order

stating (1) the claims of Stockinger and Haider cannot proceed because they are

unavailable to be deposed, (2) “at the appropriate time upon the filing of

appropriate motions undersigned [judge] will consider dismissal of those claims,”

and (3) Kuhtreiber will appear for deposition in Miami, Florida within 45 days.

Stockinger, Haider, and Kuhtreiber filed a petition for certiorari to quash this order.

We dismiss the petition for lack of jurisdiction to issue the writ.

There is a serious legal impediment to granting the writ in this case:

Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at

this stage of the proceeding. The power of district courts of appeal to review a non-

final order like this by certiorari is strictly circumscribed. Fla. R. App. P.

9.030(b)(2)(A). As the Florida Supreme Court recently explained in Citizens

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Property Insurance Corp. v. San Perdido Association, Inc., 104 So. 3d 344, 351-52

(Fla. 2012), “[v]ery few categories of non-final orders qualify for the use of a writ

of certiorari.” Certiorari review of non-final orders is a narrow remedy to be used

in extraordinary circumstances. Certiorari is not a general license for appellate

courts to closely supervise the day-to-day decision making of trial courts.

To invoke this court’s power to issue a writ of certiorari, a petitioner for the

writ must show that the challenged non-final order (1) departs from the essential

requirements of law, (2) results in material injury for the remainder of the case, and

(3) such injury is incapable of correction on postjudgment appeal. Id. at 351. These

last two elements are sometimes referred to as irreparable harm. Nader v. Fla.

Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012).

The establishment of irreparable harm is a condition precedent to invoking

certiorari jurisdiction. Miami-Dade Cnty. v. Dade Cnty. Police Benevolent

Association, 103 So. 3d 236, 238 (Fla. 3d DCA 2012). As explained by this court:

If the party seeking review does not demonstrate that it will suffer

material injury of an irreparable nature, then an appellate court may

not grant certiorari relief from a non-appealable non-final order.

Similarly, if the alleged harm can be remedied on appeal, the harm is

not considered irreparable, and thus certiorari relief is not merited.

Id. (citation omitted). Thus, at the outset, Stockinger, Haider, and Kuhtreiber must

establish that the order at issue inflicts a material injury that cannot be corrected on

appeal.

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The order we are asked to review admittedly sends a strong signal to

Stockinger, Haider, and Kuhtreiber: it puts them on notice that their cases might be

dismissed. But the operative word is “might.” The order actually resolves with

finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses

nothing, and sanctions no one. In fact, the second part merely states, “at the

appropriate time upon the filing of appropriate motions undersigned [judge] will

consider dismissal of those claims.” If the claims are ever dismissed, then, at the

appropriate time upon an appropriate appeal from a final order, this court could

review the matter. But at this point in time, nothing concrete has occurred.

When read in the normal context of ongoing litigation, the order merely

reflects the trial judge’s threat or admonishment to the parties—which is a method

available to him to try to break the discovery gridlock. We should wait and see

what results. Seasoned and respected trial judges, like the trial judge in this case,

can be trusted to manage this type of common discovery dispute. The trial judge

has done it before, and will undoubtedly do it faster, cheaper, and fairer without

our interference. It is premature for an appellate court to intervene.

In fact, Stockinger, Haider, and Kuhtreiber do not claim irreparable harm is

imminent. Instead, they posit that irreparable harm may occur if (1) Stockinger,

Haider, and Kuhtreiber are not deposed, (2) the trial court follows through on its

threat to dismiss their cases, (3) after their claims are dismissed, a Connecticut

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Court considering a related probate immediately distributes certain assets that it

controls without waiting for any appeals of the Miami-Dade dismissals to be

resolved, (4) in the meantime, Stockinger, Haider, and Kuhtreiber file an appeal of

the dismissal, prevail on the appeal, and ultimately win in the underlying probate

matter, and (5) the assets distributed by the Connecticut court cannot be recovered.

Note that each of the steps is contingent on the preceding step. If even one event

does not occur, the proffered harm does not happen. Of course, these steps might

occur. But the critical point is that these steps might not occur. We simply do not

know.

At this point in time, Petitioners’ contention that they might be irreparably

harmed is based on conjecture. Such speculation and surmise are too attenuated to

establish irreparable harm and, as a result, this court is without jurisdiction to issue

the writ.

Dismissed.

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Stockinger v. Zeilberger

Case No. 3D14-550

SUAREZ, J. (specially concurring).

I write only to explain my reason for concurring in this case. To state that

the facts underlying the case and, in particular, the order on appeal, are unusual, is

an understatement. We are faced right now with an order from the trial court in

which the trial court has stated that it MAY dismiss the case brought by Petitioners

should they not appear for deposition. Do we think that the trial court will go

through with the “sanction” it has stated in the order should the relatives not

appear, in a word, yes. But, as all lawyers and judges know, the trial court may

find another way to get a case moving along other than to follow through on what

it has stated might occur. Additionally, in order not to be dismissed from this case

and face appeal, the Petitioners may arrive at an amicable way to resolve the

deposition issue.

In other words, although the trial court MAY dismiss the Petitioners, it has

not done so nor did it state that it WOULD do so, only that it MAY do so. As

such, no irreparable harm has occurred at this point. Petitions for Certiorari are

sparingly granted on discovery issues. There must be irreparable harm and, as

none has been suffered at this point, we would be second guessing the trial court

and improperly entering into the discovery fray were we to grant this petition. It is

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not within our authority to attempt to prophesize the outcome. Ours is to wait, and

rule only if there is irreparable harm or if a final appeal is eventually brought.

SUAREZ, J., concurs.

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Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude Kuhtreiber v. Ulrike

A. Zeilberger, Personal Representative, Ulrike A. Zeilberger, Individually, Dr.

Rudolf Zeilberger, and Buro Fur Genealogie, Assignee

Case No. 3D14-550

ROTHENBERG, J. (dissenting).

Anna Hammerschmid Stockinger (“Stockinger”), Elsa Haider (“Haider”),

and Gertrude Kuhtreiber (“Kuhtreiber”) (collectively, “the Petitioners”) seek

certiorari review of the trial court’s order (“Order”) finding that Stockinger’s and

Haider’s claims cannot proceed because they are medically incapable of

traveling from Austria to Miami for depositions and that Kuhtreiber, who the

trial court found was medically able to travel, must appear in Miami for

depositions within forty-five days if she wishes to proceed on her claim. Because

the Order departs from the essential requirements of law and because I disagree

with the majority that irreparable harm has not yet occurred, I respectfully dissent

from the majority opinion dismissing the petition.

The underlying probate action followed the death of Rosina Hanko (“the

Decedent”), who died in Miami, Florida, leaving approximately $925,000 in three

bank accounts—$850,000 in a USB Investment account located in Connecticut,

$19,000 in a Bank of America account, and $56,000 in an Apple Bank account. In

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addition to the underlying Miami-Dade probate action, two other probate actions

followed in Austria and Connecticut.

The action in Miami-Dade County was initiated by the Decedent’s niece,

Ulrike A. Zeilberger (“Ulrike” or “Personal Representative”), in July 2011. In the

Amended Petition for Administration, Ulrike alleged that the Decedent died

intestate while domiciled in Miami and that the known “beneficiaries” are herself

and the Decedent’s nephew, Rudolf Zeilberger (“Rudolf”). In December 2011, the

probate court issued letters of administration appointing Ulrike as personal

representative and directing that all funds be placed into the court depository. In

March 2012, the Petitioners, who all reside in Austria, filed a Petition for

Determination of Heirs, asserting that they are the Decedent’s half-sisters,1 and

therefore, pursuant to section 732.103, Florida Statutes (2011),2 they are each

entitled to 25% of the Decedent’s intestate estate, while Ulrike and Rudolf are each

1 The Petitioners assert that they share the same father, but have different mothers.

2 Section 732.103 provides, in relevant part, as follows:

Share of other heirs.—The part of the intestate estate not passing to

the surviving spouse under s. 732.102, or the entire intestate estate if

there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent’s father and

mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent’s brothers

and sisters and the descendants of deceased brothers and sisters.

....

It appears that the Decedent was not married and never had children.

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entitled to only 12.5% of the Decedent’s estate.

Although Ulrike and Rudolf filed a probate action claiming the Decedent

died intestate, they produced a holographic will in a later-filed action in Austria,

and the Austrian court declared that the Decedent’s holographic will naming Ulrike

and Rudolf as sole equal beneficiaries was valid under Austrian law.3 The

Austrian court, however, rejected jurisdiction over “movable assets located

abroad,” including the three bank accounts at issue in this case.

Rudolf then filed an ancillary probate action in Stamford, Connecticut,

where the UBS Investment account is located. Rudolf did not serve the Petitioners

with notice of this action, and he did not notify the Connecticut court that the

Petitioners have claimed an interest in the Decedent’s estate as heirs in the Miami-

Dade action. The Connecticut court entered a decree granting ancillary probate of

the holographic will, finding that the Austrian court admitted the holographic will

to probate. However, the Connecticut decree provides: “No withdrawals of

principal or interest shall be made from any restricted account without written

approval from the Stamford Probate Court.”

Thereafter, in August 2012, Rudolf filed a motion to dismiss the Miami-

3 As translated, the holographic will provides that the Decedent bequeathed her

entire estate to her “sister,” Anni Zeilberger, and after Anni’s death, to Anni’s

children, Ulrike and Rudolf. Based on the record before this Court, it appears that

Anni is the Decedent’s half-sister, as they share the same mother, but not the same

father.

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Dade probate action for improper venue or, in the alternative, to convert it to an

ancillary administration, which informed the Miami-Dade probate court of the

Austrian court’s decree and stated that the Connecticut court’s decree had become

final on July 31, 2012. The motion asserted that venue is improper in Miami-Dade

County because the Decedent was not domiciled in Miami-Dade County and the

majority of her assets are not located in Miami-Dade County, and that venue is

proper in Connecticut because the majority of her assets, including the USB

account, are located in Connecticut. This motion is currently pending before the

Miami-Dade probate court.

The parties began conducting discovery in preparation for the Miami-Dade

probate action, and the Personal Representative noticed the Petitioners for

depositions in Miami. In response, the Petitioners filed a verified motion for

protective order (“First MPO”) based on the burdensome expense of traveling from

Austria to Miami and on the Petitioners’ ages—Kuhtreiber was 62 years old,

Stockinger was 75 years old, and Haider was 80 years old. The motion also

asserted that, although the Petitioners have never met the Decedent and have never

had any contact with the Decedent, in 1957, Haider read a letter that her father had

received from the Decedent informing him that she had married and was residing

in the United States. The Petitioners further asserted that they have no other

relevant information to provide except for their “document-driven” proof of their

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familial relationship to the Decedent, and therefore, there are less burdensome

available alternatives to taking their depositions in Miami (e.g., interrogatories,

demands for production, depositions by video link).

At the hearing on the First MPO, when determining whether a protective

order was warranted, when the trial court noted that there were no allegations that

any of the Petitioners were ill, Ulrike’s counsel responded that if the Petitioners’

physicians opined that they were unable to travel to Miami for their depositions, he

would “go to plan B.” The trial court denied the First MPO and ordered the

Petitioners to appear in Miami-Dade County within 90 days for depositions.

Thereafter, the Petitioners served a second verified motion for protective

order (“Second MPO”) stating that they cannot safely travel to Miami due to

“bona-fide medical reasons.” In support, the Petitioners submitted letters from

their physicians stating, under penalty of perjury, that the Petitioners cannot travel

by air for various medical reasons—Haider has primary cardiac disease;

Kuhtreiber suffers from post-traumatic stress syndrome and claustrophobia; and

Stockinger has undergone several ear surgeries and suffers from hearing loss. The

Second MPO also restated the Petitioners’ arguments regarding the expense of

travel, the superfluous nature of the depositions given the “document-driven”

nature of the dispute, and the availability of less burdensome means of obtaining

the necessary information. In response, Ulrike served a motion to compel the

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Petitioners’ attendance for deposition and for sanctions.

Following a hearing, the trial court entered an order granting, in part, the

Second MPO. The trial court specifically found that Stockinger and Haider are

medically prohibited from traveling by air, but that Kuhtreiber failed to support

her claim that she cannot travel by air. The trial court also found that

telephonic/video depositions are not practical because using a translator would be

overly burdensome, questioning the Petitioners about documents is logistically

impossible, and Stockinger’s severe hearing loss would preclude electronic

communications between herself and the attorney deposing her. Based on these

findings, the trial court granted the Second MPO as to Stockinger and Haider,

ruling that they would be responsible for paying the Personal Representative’s

counsel’s travel expenses to Austria, which include coach airfare, accommodations

at a three-star hotel, meals, and incidentals. The trial court denied the Second

MPO as to Kuhtreiber, but gave her the option of either sharing in the Personal

Representative’s travel expenses and being deposed in Austria or traveling to

Miami for her deposition. The trial court ordered that the depositions be

completed within 60 days.

On November 6, 2013, counsel for the Personal Representative, Mr.

Goldberg, requested that the Petitioners “Please hold Thursday, December 5th and

Friday, December 6th for depositions.” The Petitioners offered to assist in locating

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a court reporter and a translator, agreed to meet Mr. Goldberg in Vienna to reduce

his travel time, and confirmed their availability and desire to proceed. However,

instead of booking his flight, and despite the clarity of the trial court’s order, Mr.

Goldberg demanded travel expenses for three individuals—himself, a court

reporter, and a notary—and he also demanded that the estimated costs for their

travel, $5,266.06, be paid in advance.

Understandably upset by Mr. Goldberg’s deviations from the trial court’s

order, the Petitioners refused, absent a court order, to pay the travel expenses for

the court reporter and to submit advance payment for these additional expenses.

The Petitioners, however, notified Mr. Goldberg that the funds for his travel

expenses had already been placed in their Florida counsel’s trust account in

accordance with the trial court’s order.

In response, on December 2, 2013, Mr. Goldberg served an Emergency

Motion for an Order to Show Cause and for Extension of Time within which to

take the depositions of the Petitioners and seeking prepayment of the travel

expenses for himself, a court reporter and a notary. Buro Fur Genealogie4 filed a

response to this motion, asserting that the trial court’s order indicated that the

travel expenses would only be for the Personal Representative’s counsel and that

4 Buro Fur Genealogie is an heir-finding company. The Petitioners have

apparently assigned a portion of their claimed interest in the Decedent’s estate to

Buro Fur Genealogie.

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the order did not require prepayment of these expenses.

Rather than simply ruling on Mr. Goldberg’s motion and resolving the issue

of how many individual’s expenses were to be borne by the Petitioners and how

payment was to be made, the trial court extended the time to take the depositions,

reopened the litigation on whether the depositions should be taken in Austria, and

ordered the parties to submit memoranda regarding the requirements for taking

depositions in Austria. Thus, what should have been a simple issue to resolve

morphed into a complicated analysis of Austrian law.

Ulrike contended that the Austrian Ministry of Foreign Affairs must first

grant permission to take discovery, and if permission is granted, the depositions

would be conducted by a local judge who may allow the American attorney’s

presence; but if the American attorney is allowed to attend, he may not pose any

questions. In contrast, the Petitioners claimed that the Austrian Ministry of Justice

usually approves such requests and that many American attorneys have conducted

depositions in Austria pursuant to United States procedural law. Neither party,

however, addressed whether the above requirements even apply when all parties

consent to the taking of depositions.

After conducting a hearing, and apparently abandoning the scope of the

expenses it had previously ordered, the trial court entered its Order finding that,

based on the parties’ memoranda, “it is abundantly clear that the process to be

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followed is complex, time consuming and expensive with their being no guarantee

that required governmental approval from Austria would be forthcoming,” and

even if the Austrian government granted permission, the “deposition would be

taken in all likelihood by an Austrian Judge, not attorney Goldberg, and in all

probability outside the presence of Attorney Goldberg.” Thus, the trial court found

that this procedure was “unacceptable” and ordered that Stockinger’s and

Haider’s claims “may not proceed due to their unavailability to appear for the

taking of their depositions,” and that “upon the filing of appropriate Motions,”

the trial court “will consider dismissal of those claims.” As to Kuhtreiber, the trial

court ruled that she is capable of traveling to Miami, and “should she wish to

proceed herein she shall appear for the taking of same within 45 days.” This

petition for writ of certiorari followed.

In seeking certiorari relief, the Petitioners must demonstrate that the trial

court’s Order “depart[s] from the essential requirements of law, resulting in

irreparable harm that cannot be adequately remedied on final appeal.” Millennium

Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So. 3d 1086,

1089 (Fla. 3d DCA 2013); see also Reeves v. Fleetwood Homes of Fla., Inc., 889

So. 2d 812, 822 (Fla. 2004) (“It is well settled that to obtain a writ of certiorari,

there must exist ‘(1) a departure from the essential requirements of the law, (2)

resulting in material injury for the remainder of the case (3) that cannot be

16

corrected on postjudgment appeal.’” (quoting Bd. of Regents v. Snyder, 826 So. 2d

382, 387 (Fla. 2d DCA 2002))); Miccosukee Tribe of Indians v. Lehtinen, 114 So.

3d 329, 331 (Fla. 3d DCA 2013) (“A common law writ of certiorari is proper and

will be granted when a trial court’s determination constitutes a clear departure

from the essential requirements of the law resulting in material injury for the

remainder of the case that cannot be properly remedied on post-judgment

appeal.”). “Material injury and irreparable harm are ‘jurisdictional prerequisites to

certiorari relief.’” Millennium Diagnostic Imaging Ctr., 129 So. 3d at 1089

(quoting Nucci v. Nucci, 987 So. 2d 135, 139 (Fla. 2d DCA 2008)); see also

Poston v. Wiggins, 112 So. 3d 783, 785 (Fla. 1st DCA 2013) (holding that in

ruling on a petition for writ of certiorari, the reviewing court “must first conduct a

jurisdictional analysis to determine whether the petitioner had made a prima facie

showing of irreparable harm”); Jackson v. Computer Sci. Raytheon, 36 So. 3d 754,

756 (Fla. 1st DCA 2010) (“Certiorari jurisdiction does not arise unless the court

first establishes irreparable harm.”).

The trial court’s Order constitutes a departure from the essential

requirements of law. The trial court’s Order precludes Haider and Stockinger from

proceeding on their claims unless they appear for depositions in Miami despite a

finding by the trial court that they are medically incapable of traveling to Miami.

As to Kuhtreiber, the trial court determined that Kuhtreiber is capable of traveling

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from Austria to Miami despite Kuhtreiber’s physician’s unrebutted orders that

“air travel, particularly on long-haul flights, is strongly discouraged!” due to

Kuhtreiber’s post-traumatic stress syndrome and claustrophobia. Nonetheless, the

trial court ruled that “should [Kuhtreiber] wish to proceed herein she shall appear

for the taking of same within 45 days.” Therefore, if this Court does not quash the

Order, Kuhtreiber will be faced with a very difficult decision: risk traveling to

Miami against the advice of her physician or have her claim dismissed; and Haider

and Stockinger will effectively be shut out of the litigation regardless of whether

the trial court actually dismisses their claims.

Although a trial court has discretion to impose sanctions for discovery

violations, see Ham v. Dunmire, 891 So. 2d 492, 495 (Fla. 2004) (“It is well settled

that determining sanctions for discovery violations is committed to the discretion

of the trial court, and will not be disturbed upon appeal absent an abuse of the

sound exercise of that discretion.”), the Petitioners have yet to commit any

discovery violations. They merely sought a protective order. Further, the purpose

of imposing a sanction for discovery violations is “to ensure compliance with the

trial court’s order rather than to punish.” Deutsche Bank Nat’l Trust Co. v. LGC,

107 So. 3d 486, 488 (Fla. 2d DCA 2013). The trial court is undoubtedly aware that

threatening Stockinger and Haider with dismissal of their claims cannot encourage

them to travel to Miami for the depositions because they are medically

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prohibited from doing so. Further, giving Kuhtreiber the ultimatum of either

traveling to Miami or facing dismissal of her claim will not reasonably “ensure

compliance” with any of the trial court’s orders, but rather, will merely “punish”

her by forcing her to choose between risking her health to travel to Miami for the

deposition and having her claim dismissed. Such punitive sanctions are unduly

harsh and improper.

Dismissing a party’s claim “is the most severe sanction a court may

impose,” and it “should be reserved for the most egregious conduct and used only

in the most extreme circumstances,” Littlefield v. Torrence, 778 So. 2d 368, 369

(Fla. 2d DCA 2001), such as when the violation is ‘“willful, flagrant,

contumacious, or contemptuous.”’ Id. (quoting Momenah v. Ammache, 616 So.

2d 121, 123 (Fla. 2d DCA 1993)); see also Toll v. Korge, 127 So. 3d 883, 887 (Fla.

3d DCA 2013) (providing that as dismissal of a claim for violation of a discovery

order is “the most severe of all sanctions,” it “should be employed only in extreme

circumstances” (quoting Ham, 891 So. 2d at 495)).

Although the majority finds that irreparable harm has not yet occurred

because the parties’ claims have not been dismissed, precluding a party from

participating in the proceedings as a sanction for failing to appear for a

deposition in Miami when the party is medically incapable of doing so is no

less a sanction than an outright dismissal of the party’s claim. The Petitioners’

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conduct in this case does not warrant the imposition of such a dire sanction, as they

have not engaged in any egregious conduct. This is especially true where, as here,

the Petitioners are more than willing to be deposed in Austria, they have agreed to

pay the Respondents’ counsel’s costs to travel to Austria to depose them, there are

several available alternative options to depose the Petitioners without requiring

them to travel to Miami, and the Petitioners have very little information to provide

other than the documents they have already provided to the Respondents.

To the contrary, Ulrike’s actions are responsible for causing further delay

and substantial legal fees in this action. Simply put, if Ulrike’s counsel had

traveled to Austria as initially ordered by the trial court, the depositions would

most likely have taken place without incident as it appears that the Petitioners were

more than willing to cooperate.

Additionally, the trial court apparently changed its earlier ruling ordering

that the depositions must be taken in Austria after it concluded that the deposition

process in Austria would likely be “complex, time consuming and expensive.”

Thus, rather than attempting to maneuver through this “complex, time consuming

and expensive” process, the trial court chose a route that effectively dismissed

potentially valid claims despite the Petitioners’ compliance with all discovery

orders and their willingness to be deposed in Austria. And, although it may have

been burdensome to conduct telephonic/video depositions due to Stockinger’s

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hearing impairment and the parties’ need to use the services of an interpreter, the

necessary accommodations could have been made, especially where the trial court

has already concluded that Stockinger and Haider are medically prohibited from

traveling to Miami to be deposed and where such travel is “strongly discouraged”

for Kuhtreiber.

Lastly, and importantly, it is unrefuted that the Petitioners’ claims are

“document driven.” The Petitioners have already admitted that they have never

met the Decedent and did not maintain a relationship with the Decedent. Because

the Petitioners are seeking an interest in the Decedent’s intestate estate as the

Decedent’s heirs, their relationship (or lack of relationship) with the Decedent is

irrelevant, and their claims can be established based solely on authenticated,

written documents. In fact, the Petitioners attached to their petition for

determination of heirs numerous birth records and a family chart indicating that the

Petitioners and the Decedent are half-sisters. Thus, in reality, the Petitioners’

depositions likely will not result in much relevant information, if any, as their

claims are purely document driven, and they have already admitted that they have

never met the Decedent and did not maintain a relationship with the Decedent.

Based on these reasons, the trial court’s Order departs from the essential

requirements of law and will cause irreparable harm.

More importantly, since the majority opinion appears to concede that the

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trial court departed from the essential requirement of law, the petition should not

be dismissed as premature as the majority concludes. Although the trial court has

not yet carried out its threat to dismiss the Petitioners’ claims, the trial court has

precluded the Petitioners from proceeding with their claims, which will lead to

the same result—the Respondents will proceed with no objection or input by the

Petitioners. And without the impediment of the Petitioners, the Respondents will

most likely become the sole beneficiaries of their deceased aunt’s estate. In other

words, certiorari relief is not premature because the trial court’s Order ends

Haider’s and Stockinger’s participation in the lawsuit regardless of whether

or not the trial court ultimately dismisses their claims at some later date.

Although certiorari is not a general license for appellate courts to closely

supervise the day-to-day decision making of the trial courts, closing the courtroom

doors to parties in a lawsuit who, even by the trial court’s own admission, have not

willingly disobeyed any court order is not only a clear departure from the law, it is

a violation of the most basic constitutional principles of due process and access to

our courts.

The trial court’s Order will cause irreparable harm that cannot be adequately

remedied on plenary appeal because the trial court’s Order precludes the

Petitioners’ from proceeding with their claims. The Order will prevent the

Petitioners from participating in the pending discovery or in the action itself.

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Therefore, the Petitioners will be barred from attempting to establish that they are

the Decedent’s heirs and are thus entitled to a significant portion of the Decedent’s

estate under section 732.103 of the Florida Statutes. Additionally, because the

Petitioners have been effectively barred from proceeding in the Miami-Dade

probate action, and because the Connecticut probate court has accepted

administration of the holographic will, the Decedent’s estate may be distributed to

Ulrike and Rudolf while the Petitioners are barred from asserting their rights to the

estate here in Miami-Dade County under section 732.103. This would leave the

Petitioners with no recourse. Thus, the Order will cause irreparable harm that

cannot be remedied on plenary appeal.

As the Petitioners have established that the trial court’s Order departs from

the essential requirements of law and that the Order will result in material injury

that cannot be remedied on plenary appeal, I would grant the petition for writ of

certiorari and quash the order under review.

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