# Third District Court of Appeal State of Florida Opinion filed October 6, 2022

. Not final until disposition of timely filed motion for rehearing.

________________ No s

. 3D18

- 1976 & 3D18

- 1975 Lower Tribunal No. 16

- 28473

________________ Cozen O’Connor, PLC and John David Dickenson, et al., Petitioners,

vs. Mintz Truppman, P.A., etc., Respondent.

On Petition for Writ of Certiorari from the Circuit Court of Miami

- Dade County, David C. Miller, Judge. Cozen O’Connor, and Charles C. Kline, Jason R. Domark and Reid Kline; Cole, Scott & Kissane, P.A., and Thomas E. Scott, for petitioners. Mintz Truppman, P.A., and Timothy H. Crutchfield; Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. , and Shawn R. Horwick and Craig M. Greene (Hollywood), for respondent.

Before FERNANDEZ , C.J., and LOGUE and SCALES, JJ. SCALES, J.2 This case comes to this Court on remand from the Florida Supreme Court, with directions for us to adjudicate, in the f irst instance, the petitions for writ of certiorari filed by petitioners, the defendants below, Coz e n O ’ Conner, PLC and John Dickerson ( together , “ Cozen ” ) and Lexington Insurance Company (“Lexington”)

. Mintz Truppman, P.A. v. Cozen O’Connor, PLC , 47 Fla. L . Weekly S519, 2022 WL 3650714 (Fla. Aug. 25, 2022). ( “ Cozen II ” ). In Cozen II , the Florida Supreme Court quashed our opinion in Cozen O’Connor, PLC v. Mintz Trup p man , P.A. , 306 So. 3d 259 (Fla. 3d DCA 2020) ( “ Cozen I ” ).
In Cozen I , we consolidated Cozen and Lexington ’ s certiorari and prohibition petitions for all purposes and, relying upon prior authority from this Court , 1 we granted Cozen and Lexington's petitions to the extent that their petitions sought to prohibit the trial court from continui ng to adjudicate Mintz Trup p man ’ s state court lawsuit. Cozen I , 306 So. 3d at 265. Mintz Trup p man ’ s state court lawsuit alleged that petitioners had violated Florida ’ s Mediation Confidentiality and Privilege Act ( “ the Act ” ). 2

1 The two cases are E.J. DuPont de Nemours & Co. v. Melvin Piedmont Nursery , 971 So. 2d 897 (Fla. 3d DCA 2007) and Carnival Corporation v. Middleton , 941 So. 2d 421 (Fla. 3d DCA 2006).

2 In its second amended complaint, Mintz Truppman sought declaratory and injunctive relief; and alleged breach of mediation contract, conspiracy to3 Cozen and Lexington filed motions to dismiss Mintz Trup p man ’ s second amended complaint, alleging , inter alia , that (i) the litigation privilege protected Lexington from state court liability for defending itself against Mintz Truppman’s federal lawsuit, and (ii) the trial court lac ked subject matter jurisdiction on a standing ground, as Mintz Truppman was not a “party” to the mediation. The t rial court entered order s denying Cozen and Lexington ’ s motion s to dismiss . Their petitions sought to quash th ese order s via both prohibition a nd certiorari. In Cozen I , we held that, because the gravamen of Mintz Trup p man's
state court action was to obtain additional attorney ’ s fees in a fee claim that had been adjudicated to finality in federal court, Mintz Trup p man was collaterally estopped from seeking such fees in its state court case ; and therefore, the state court lacked the requisite jurisdiction to adjudicate Mintz Trup p man ’ s claim. 306 So. 3d at 264

- 65 . We granted Cozen and Lexington’ s consolidated petitio ns for writ of prohibition and directed the trial court to dismiss Mintz Truppman’s second amended complaint

. Id. at 265. Because we granted only that portion of Cozen and Lexington’s consolidated petitions seeking prohibition, we neither reached nor adjud icated the alternat e

violate the Act, breach of the Act’s confidentiality provision, bad faith/unfair claims practices, and fraud i n the inducement.4 assertions in the petitions seeking certiorari relief from the challenged order.
I n fact, we dismissed, as moot, the consolidated certiorari petitions. Id. As mentioned above, in quashing Cozen I , our Supreme Court directs that we

now adjudicate the consolidated certiorari petitions

. Cozen II , 2022 WL 3650714 at *4. In their consolidated certio rari petitions, Cozen and Lexington argue that, in entering the challenged order, the trial court departed from the essential requirements of la w b ecause: (i) Cozen and Lexington’s decision to include Mintz Truppman’s pre

- mediation demand letter within Lexington’s response to Mintz Truppman’s client’s attorney’s fee motion in federal court is immunized by the litigation privilege; and (ii) Mintz T ruppman lacks standing under the Act to pursue its claims for relief. We lack certiorari jurisdiction , though, to decide the issue of whether

a trial court has departed from the essential requirements of law, unless a certiorari petition first establishes that the challenged order results in irrep a rable harm that cannot be remedied on appeal

. Citizens Prop. Ins. Corp. v. San Perdido Ass’n , 104 So. 3d 344, 351 (Fla. 2012). Cozen and Lexington fail to make the requisite showing that the trial court’s denials of their motions to dismiss caused irreparable harm. Damsky v. Univ. of Miami , 152 So. 3d 789, 792 (Fla. 3d DCA 2014) (“Under the high standard for5 issuance of certiorari, the first and nece ssary condition is demonstration of irreparable harm. Mere legal error without irreparable harm, even a departure from the essential requirements of law, while appealable at the end of the case, is not a basis for the issuance of a writ of certiorari. Unle ss the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction.”). Cozen and Lexington are now free to plead their denials and defenses, and u ltimately might prevail in the lawsuit. We have held in the certior ari
context , though, that having to defend against a lawsuit that a party believes lacks merit does not constitute the requisite irrep a rable harm. See Rodriguez v. Miami

- Dade Cnty. , 117 So. 3d 400, 405 (Fla. 3d DCA 2013). We therefore conclude that we lac k certiorari jurisdiction to review the challenged order s , and are compelled to dismiss Cozen and Lexington ’ s consolidated petitions seeking certio rar i relief. Consolidated certiorari petitions dismissed.