Magistrates, Reconsideration, and Writs, Oh My!

Every once in a while a case comes along that is just a treasure trove of procedural goodness. It’s even nicer when you happen to know the prevailing party, and know the rules as applied helped the good guys. The case is Seigler v. Bell, Case No. 5D14-642 (Fla. 5th DCA Sept. 19, 2014)[.pdf]. The underlying dispute is a complicated child custody battle between a Mother and Grandmother. While there is no need to go into the nitty gritty of the underlying facts of the dispute, the decision today provides great insight into several issues of broad application: (a) The role of magistrates in proceedings before a trial court, (b) the important differences between rehearing and reconsideration at the trial court level, and (c) jurisdiction over writs of certiorari and mandamus. Let’s unpack each in turn.

Magistrates and Finality

The opinion lays out in detail the legal and procedural effect of an issue being heard by a magistrate. Most importantly:

While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments….Even when no exceptions are filed, the trial court is “duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether[,] under the law and facts[,] the court is justified in entering the judgment recommended” by the magistrate…. Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment.

Slip. Op. at 7-8, citations omitted. In this case, both parties did file exceptions, and the trial court ruled on them, but the effect of that ruling was not a final judgment. The trial court rejected one party’s exceptions and accepted some of the other party’s exceptions, but the resulting order on the recommendation merely stated “the Report … is hereby modified….” Because the trial court “modified” the magistrate’s report but did not enter judgment, the order modifying the report (“the Modification Order”) was not a final order.

Rehearing v. Reconsideration

Whether the Modification Order was a final order is important in this case, because it is determinative of the next issue the appellate court decided — whether the Grandmother’s “Motion for Rehearing or Reconsideration” (the “Reconsideration Motion”) was timely and authorized. The Mother’s Petition sought review of the trial court’s order granting the Motion for Rehearing or Reconsideration. The Reconsideration Motion was filed 12 days after the trial court entered its order modifying the magistrate’s report and recommendation. If the Modification Order had been a final judgment, then it would be subject to a Rule 1.530 motion for rehearing. But then the Reconsideration Order would have been untimely, because at the time Rule 1.530 required that a motion for rehearing be served no later than 10 days after entry of judgment. (The rule was since amended to allow 15 days for service of a motion for rehearing).

The Court held that since the Modification Order was not a final order, the trial court had the inherent power to reconsider its interlocutory order at any time. Op. at 9. The court explained:

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” … Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall
be treated as motions for reconsideration.

Op. at 9-10, citations omitted. The Court also emphasized that the trial court had the power to sua sponte reconsider its own interlocutory orders. Op. at 10.

Certiorari, Mandamus, and Appealable Non-Final Orders

Because the Court had the power to reconsider its interlocutory order, the next question it considered was whether the order granting reconsideration in the Grandmother’s favor (“the Reconsideration Order”) was an appealable order. The Court didn’t even look at whether the Reconsideration Order was a final order, because it left open further proceedings and still did not take on the tenor of a judgment of the Court.

The Court considered but rejected the argument that the Reconsideration Order could be classified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii), which allows for immediate appeal of orders determining the right to child custody in family law matters. It is not clear whether the Mother made this argument, but the Court did the right thing in considering it in any event, because Rule 9.040(c) allows that “if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). However, the Court concluded that the order does not determine the right to custody, but “merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order.” Op. at 10. It’s a decision to take more evidence, not a determination of custody, and therefore not an appealable interlocutory order.

The court also considered whether the Mother’s Petition entitled her to the relief requested, certiorari or mandamus relief. Both certioari and mandamus are extraordinary appellate remedies, because they allow the appellate court to step in and rule on the propriety of an interlocutory order. The Court dismissed the Petition for Writ of Certiorari for lack of jurisdiction and denied the Petition for Writ of Mandamus.

The Mother argued in favor of certiorari review because, based on her view that the Rehearing Motion was untimely, the trial court was without jurisdiction to entertain it. The Court set out the standard test for certiorari relief:

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.”… The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional.

Applying this test — and its prior procedural analysis that the trial court had the power to reconsider the Modification Order and enter the Reconsideration Order — the Court found that the Reconsideration Order neither departed from the essential requirements of law or caused irreparable harm. The Court therefore held that it lacked jurisdiction to grant the requested certiorari relief.

The request for mandamus relief likely asked the Court to order the trial court to enter final judgment on the Modification Order. As the Court explained:

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” … “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.”

Op. at 11 (citations omitted). In this case, because the trial court had the power to reconsider its own interlocutory order, the Mother could not prove she was entitled to compel the trial court to enforce an established legal right to entry of judgment in her favor. The Court therefore denied the petition for writ of mandamus.

Kudos

Congratulations again to my friend Vicki Levin Eskin of Levy & Associates, P.A. for her appellate win! Vicki represents the Grandmother in this case pro bono, to boot (that means free, folks).

Full Disclosure: I assisted Vicki pro bono in responding to the appellate motion for rehearing or rehearing en banc filed by the other side. I am pleased to report that the court denied rehearing today, so the decision is now final.

“Final” Judgment While Appeal Pending is Void

On a petition for certiorari filed by a non-party challenging a post-judgment discovery order, the Second District Court of Appeal has provided us with some great language on what constitutes a void judgment. In Gibson v. Progress Bank of Florida, No. 2D10-4137 (Fla. 2d DCA Feb. 23, 2011)[.pdf], the court decided what should be a fairly obvious point — that a final judgment entered while an interlocutory appeal is pending is outside the jurisdiction of the trial court and therefore void. This proposition comes directly out of Florida Rule of Appellate Procedure 9.130(f), which states:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

(emphasis by Court).

A final summary judgment, all parties agreed, “constitutes a final order disposing of the cause.” The Court held, therefore, that the judgment was null and void, explaining:

A void judgment is “[a] judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally…. It is incapable of being confirmed, ratified, or enforced in any manner or to any degree.”

Applying Florida Rule of Civil Procedure 1.560, the court concluded that there can be no discovery in aid of execution of a void judgment. Moreover, applying the general discovery rules applicable to pending actions, the court held that discovery from the Petitioners under those rules was irrelevant prior to judgment. Quashing the discovery order, the court concluded “because the final judgment is void, the Petitioners would suffer irreparable harm if forced to disclose their personal financial information.”

Jurisdiction and Extraordinary Writs

Sometimes, you can win the battle and lose the war. So it can be with jurisdiction. Even if you are correct that there is no jurisdiction over an appeal in the Florida intermediate appellate courts, the Court still has the discretion to treat an appeal as a request for an extraordinary writ.

And that’s exactly what the Second District Court of Appeal did to late last month. (Full disclosure, I was attorney of record for the Appellee on this case). On the eve of a hearing on the Defendants’ summary judgment motion, the Plaintiff filed a notice of voluntary dismissal. The Defendant asked the trial court to strike the notice of voluntary dismissal, arguing that it had attained rights in the case precluding voluntary dismissal and fraud on the court. The trial court did so, and the plaintiff appealed.

The problem, however, was that the order they were attempting to appeal was neither a final appealable order nor an order available for interlocutory appeal. And I elloquently told the court so.

The Second DCA knew I was right:

We briefly address this court’s jurisdiction to consider this appeal. Service Experts’ notice of appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The Northside defendants have argued that this court does not have jurisdiction under rule 9.130(a)(5) because that rule applies to orders entered on motions for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. They state that their motion to strike the notice of voluntary dismissal was not made pursuant to rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. We agree with their procedural assessment.

However, the Court dug deep and created a remedy for the Plaintiff by converting the appeal to a writ of prohibition, pursuant to Rule 9.040(c):

Based on the facts of this case, appellate jurisdiction does not neatly fall within the confines of rule 9.130(a)(5). Nevertheless, Florida Rule of Appellate Procedure 9.040(c) provides that when a party seeks an improper remedy, “the cause shall be treated as if the proper remedy had been sought.” Here, a writ of prohibition is appropriate “to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.” City of Ocala v. Gard, 988 So.2d 1281, 1283 (Fla. 5th DCA 2008). It is “the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction” where there is no right to remedy the wrong at issue by direct appeal. Id. at 1283. Because we conclude that the trial court’s order was in excess of its jurisdiction, we have appellate jurisdiction to “forestall an impending injury”-forced litigation after the plaintiff’s notice of voluntary dismissal was filed. As there is no other adequate remedy, we convert this appeal to a writ of prohibition.

Now, the rules geek in me does, in fact, feel vindicated that I was right about the jurisdiction issue. But that’s not much comfort to the client, who had a favorable ruling overturned.

A request for clarification is pending on the appeal. The case is Service Experts, LLC v. Northside Air Conditioning & Elec. Service, Inc., No. 2D09-5416, ___ So.3d ____ (September 22, 2010) [.pdf].