Original Proceedings: Part II – Second Tier Certiorari

In our last post on original proceedings, we covered the basics of common law certiorari in civil cases. That writ is available to review non-final orders of trial courts that are not otherwise reviewable under Florida Rule of Appellate Procedure 9.130. Here we address “second-tier” certiorari. Florida Rule of Appellate Procedure 9.030(b)(2)(B) vests district courts of appeal with discretionary jurisdiction to review final decisions of circuit courts acting in their appellate capacity. Because the jurisdictional standards are so tight and the case law on second-tier certiorari is so fact-specific, it is difficult to define objective criteria regarding predicates for issuance of this writ; this post provides an overview and references for additional research.

Second-tier certiorari represents the only avenue for further review of a circuit court appellate decision. Second-tier certiorari is not a means to a second appeal. See generally Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1093 (Fla. 2010) (explaining that “[a] more expansive view would … afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of original jurisdiction”). Instead, a petition for second-tier certiorari will be granted only when the circuit court’s decision departs from a clearly established principle of law resulting in a miscarriage of justice. Nader v. Florida Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 725 (Fla. 2012). A departure from the essential requirements of law occurs “where the circuit court fails to afford due procedural process or fails to apply the correct law.” GEICO Indem. Co. v. Gables Ins. Recovery, Inc., 159 So. 3d 151, 153 (Fla. 3d DCA 2014).

Second-tier certiorari cannot be used to correct a mere legal error. Id. at 154. The petitioner must establish that the error is so serious that it results in a “miscarriage of justice.” Nader, 87 So. 3d at 726-27. As the Court recognized in Nader, it is impossible to “create an exhaustive list of such situations” so DCAs have “a large degree of discretion” in deciding whether to grant a petition for second-tier certiorari. Id. at 726. Nader and GEICO are examples of cases where the petition was granted because the circuit court’s departure from the essential requirements of law affected not only the parties to the proceeding, but would affect numerous other cases, thus resulting in a miscarriage of justice. A recent decision of the Third DCA identifies an unsettled issue regarding second-tier certiorari—whether conflicting decisions in the same circuit court appellate division constitute a basis for secondtier certiorari jurisdiction. See Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 2017 WL 5760355 (Fla. 3d DCA Nov. 29, 2017). Although the Third DCA certified that question to the Florida Supreme Court as one of great public importance, neither party invoked the Court’s jurisdiction so the question remains unanswered on a statewide basis. In a partial concurrence/partial dissent, Judge Logue provides a comprehensive discussion of the history, predicates and purpose of second-tier certiorari.  See id. at **4-11.

The Fifth DCA has concluded—at least implicitly—that conflicting circuit appellate decisions are a proper basis for second-tier certiorari jurisdiction. See Fla. Med. & Inj. Ctr., Inc. v. Progressive Express Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) (granting certiorari to resolve conflicting appellate decisions from the same judicial circuit). More recently, the Fifth DCA issued an opinion denying a petition for second-tier certiorari “to provide precedent and a basis of continuity for future trial court rulings.” Progressive Select Ins. Co. v. Florida Hosp. Med. Ctr., 42 Fla. L. Weekly D2455, *1 n.1 (Fla. 5th DCA Nov. 17, 2017) (noting conflict in appellate decisions from different circuit court appellate divisions). Interestingly, the Fifth DCA denied the petition because it concluded that there was “no violation of a clearly established principle of law that results in a miscarriage of justice.” Id. at *9. The decision in Progressive Select to “provide precedent” is difficult to reconcile with the Fifth DCA’s observation—made two years earlier—that despite “a great temptation … to provide precedent where precedent is needed,” the solution is not second-tier certiorari. Clark v. State, 170 So. 3d 69, 71 (Fla. 5th DCA 2015) (denying petition where circuit court appellate decision interpreting “unclear” statutory text regarding admissibility of photographic evidence in red light camera case did not violate “a clearly established principle of law”) (italics in original).

If you are considering seeking second-tier review of an adverse circuit court appellate decision, be sure to carefully evaluate whether—and painstakingly demonstrate how—the decision “departs from the essential requirements of law” and results in a “miscarriage of justice.” As the cases noted above suggest, this is a difficult needle to thread. For an in-depth analysis of the “miscarriage of justice” element of second-tier certiorari, see John A. Greco, Esq., Second-Tier Certiorari: Adverse Precedential Effect As A Predicate for Finding A “Miscarriage of Justice” in Government Appeals, 12 Fla. Int’l Univ. L.  Rev. 297 (2017). Another article is dedicated to common law certiorari review of non-final orders, but discusses several second-tier certiorari cases to demonstrate the lack of clarity in what exactly is a “departure from the essential requirements of law”; the article also provides a compendium of cases where the standard has been met and not met. See Chris W. Altenbernd & Jamie Moore Marcario, Certiorari Review of Non-Final Orders: Does One Size Really Fit All, 42 Stetson L. Rev. 381, 386 (2013).

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