Original Proceedings: Part I – The Basics of Certiorari
POSTED: December 12, 2017
TAGS: appeals, common law certiorari, Original proceedings, petition for writ of certiorari, Rule 9.100
|Rule 9.100 of the Florida Rules of Appellate Procedure, titled “Original Proceedings,” govern writs of certiorari, mandamus, prohibition, quo warranto, and habeas corpus. This post is the first in a series that will delve into original proceedings. Here, we provide an overview of the basics of common law certiorari in civil actions. As an initial matter, it is important to understand that although certiorari is theoretically available to review any non-final order, it is not a substitute for a direct appeal. Accordingly, where there is an avenue for direct appeal as a matter of right (either under Rule 9.130 or as a final appeal under Rule 9.110), courts will not exercise certiorari jurisdiction to review a non-final order absent a strong showing of the basis for jurisdiction.
CERTIORARI JURISDICTION IS LIMITED
The District Courts of Appeal are vested with discretionary jurisdiction to review non-final orders of lower tribunals not subject to review under Rule 9.130. The DCAs also have discretionary jurisdiction to review final orders of Circuit Courts acting in their appellate capacity (“second-tier” certiorari). Second-tier certiorari will be treated in a later post in this series.
Parallel to the DCAs, Circuit Courts have discretionary jurisdiction to review non-final orders of lower tribunals that are not subject to review under Rule 9.130. Circuit courts also have jurisdiction to review quasi-judicial orders of local government bodies not subject to the Administrative Procedure Act when no other method of review is available; such review is a matter of right, not discretion. For a general discussion of the history and scope of this type of review, see Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).
Where review is sought of a non-final order not otherwise subject to review under Rule 9.130, jurisdiction is discretionary and the petitioner must show that (1) the trial court’s order was a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on a final appeal. Williams v. Oken, 62 So. 3d 1129 (Fla. 2011). Because of the limited and extraordinary nature of certiorari, the last two elements are jurisdictional and must be analyzed before the court can exercise jurisdiction to consider the first element. See id. at 1132 (citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995). A different and broader standard of review applies to petitions directed to Circuit Courts for review of quasi-judicial orders of local governmental bodies. In these cases—where review is not discretionary but is a matter of right—the inquiry is whether procedural due process requirements were met, whether the essential requirements of law were observed, and whether the order is supported by competent, substantial evidence.
PROCEDURE APPLICABLE TO PETITIONS FOR CERTIORARI
To institute certiorari review, a party must file a petition directly with the reviewing court, not with the lower tribunal as would be done with a direct appeal. Rule 9.100 spells out filing and related procedural requirements for all original proceedings. A petition for certiorari—which is similar to a brief in terms of content requirements—must be filed within 30 days of rendition of the order to be reviewed. In practical terms, this means that if you are planning to file a petition for certiorari, don’t wait until the 29th day to prepare it because unlike a conventional interlocutory (9.130) or final appeal, you don’t file a notice and then brief the argument later. And since motions for rehearing are not “authorized” as to non-final orders, filing a motion for rehearing will not toll rendition—which is to say that if you want to seek certiorari review of a non-final order, file your petition within thirty days; failure to do so guarantees that the reviewing court will not exercise jurisdiction.
Rule 9.100(g) generally details the content requirements for all petitions in original proceedings, including certiorari; Rule 9.100(f) contains additional requirements applicable to review proceedings in Circuit Courts. The filing of the petition itself, whether in the DCA or Circuit Court, does not operate to stay the underlying proceeding or enforcement of the order sought to be reviewed. Accordingly, if appropriate, a separate motion for stay should be filed in accordance with Rule 9.310.
If the petition demonstrates that the lower tribunal‘s departure from the essential requirements of law will cause material injury which cannot be remedied on final appeal, the reviewing court may issue an order directing the respondent to show cause why relief should not be granted or otherwise require the respondent to file a response to the petition within a designated time. The response must be 50 pages or less and should include appropriate citations to the petitioner’s appendix or a separate appendix submitted by the respondent. The petitioner is entitled to a reply of 15 pages or less that must be filed within 20 days following service of the response. In the event the reviewing court finds in favor of the petitioner, the relief provided is the quashing of the lower court’s order. The reviewing court has no authority to direct the lower court as to the terms of any subsequent order.
EXAMPLES OF CASES WHERE CERTIORARI MAY BE APPROPRIATE
Certiorari relief is appropriate for “cat out of the bag” discovery rulings or decisions evidencing a trial court’s departure from essential procedural requirements set by law. A trio of recent cases provide helpful examples of when certiorari can be effectively utilized. In Tyco Products, L.P. v. 2711 Hollywood Beach Condominium Association, Inc., 207 So. 3d 299 (Fla. 3d DCA 2016), a defendant was ordered to produce documents alleged to be privileged attorney-client communications and protected work product. The Third DCA quashed the order, explaining that certiorari is the appropriate method to obtain relief from such orders. In Kidd v. Kidd, 219 So. 3d 1021 (Fla. 5th DCA 2017), the Fifth DCA granted certiorari and quashed a trial court’s order disqualifying a wife’s attorney from representing her in a family law proceeding. The Court granted such relief upon determining that the trial court had departed from the essential requirements of the law by failing to apply the appropriate Rule of Professional Conduct to the motion to disqualify filed by the former husband/respondent. In Bistline v. Rogers, 215 So. 3d 607 (Fla. 4th DCA 2017), the Fourth DCA reviewed a petition for certiorari directed to an order granting a plaintiff’s motion to amend his complaint to assert a claim for punitive damages. The Court granted certiorari and quashed the order based on the trial court’s failure to comply with the procedural requirements for seeking punitive damages as set forth in section 768.72, Florida Statutes.
By contrast, certiorari is not available to prevent discovery that is simply overbroad, but not otherwise protected by a legal privilege. As the Florida Supreme Court explained in Board of Trustees of Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So. 3d 450 (Fla. 2012), “overbreadth is not a proper basis for certiorari review of discovery orders.” Nor is certiorari appropriate where the petition does not establish that any harm resulting from the claimed erroneous order cannot be corrected on final review, as the First DCA recently explained in Landmark at Crescent Ridge LP v. Everest Financial, Inc., 219 So. 3d 218 (Fla. 1st DCA 2017) (dismissing petition for certiorari and holding denial of motion to dissolve lis pendens did not cause irreparable harm that could not be remedied on final appeal; noting requirement that petition for certiorari must “clearly reflect how the potential harm is incurable by a final appeal”).
The bottom line when evaluating whether to seek certiorari of a seemingly erroneous non-final order is that while issuance of the writ is discretionary, the basis for jurisdiction is narrow and the standards of review are strict. That said, practitioners shouldn’t shy away from utilizing this effective procedural tool if the facts and circumstances of your client’s case appear to meet the applicable criteria.