What is a Writ of Certiorari in Florida State Courts?

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The term writ of certiorari is used in many different contexts, depending on the courts involved. The Latin word certiorari (often abbreviated as “Cert.”) means “to be made certain,” and in Old English courts such writs actually began with the Latin words “Certiorari volumus…” (“We wish to be made certain…”). In Florida state courts, the writ of certiorari most often refers to a proceeding in which a party asks an intermediate appellate court, here known as a District Court of Appeal, to review a decision of a trial court. But importantly, it can’t be just any trial court decision, because otherwise litigants would file a writ every time they disagreed with the trial court. For the District Court of Appeal to have jurisdiction to hear a Writ of Certiorari, the order must be otherwise unappealable, and the party seeking certiorari relief must demonstrate that harm caused by the order is irreparable and cannot be remedied on plenary appeal, and that the ruling was “a departure from the essential requirements of law.” Let’s drill down on what each of these requirements mean.

Not an Otherwise Appealable Nonfinal Order

There are some kinds of nonfinal orders that Florida has decided are automatically appealable — essentially, Florida has made a policy decision that certain kinds of cases do not need to make the showing that is normally required by certioari, because there is clearly a lack of remedy by the time the case is over. Before you consider filing a writ of certiorari, be sure to check out the list of directly appealable nonfinal orders found in Rule 9.140. But if the order you want reviewed is not on the list of appealable non final orders, you should determine if a writ of certiorari is available to you.

Harm Not Remedied by Plenary Appeal

Assuming the ruling is not covered by Rule 9.140, the threshold issue the appellate court will consider is whether the harm caused by the order is of a character that it needs to be resolved now, rather than at the end of the case. The term “plenary appeal” refers to an appeal of a final order, which comes at the end of the case. Most rulings, no matter how wrong, can be fixed at the end of the case, or more importantly, don’t need to be fixed — usually because it did not affect the ultimate outcome of the case. This prong of the test is also sometimes referred to as “irreparable harm.” And not all types of harm are considered irreparable. For example, a ruling costing a party a lot of money is not sufficient to cause irreparable harm. W. Florida Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676, 682 (Fla. 1st DCA 2009), approved, 79 So. 3d 1 (Fla. 2012). Even disclosure of information in which the party has a “valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature” does not generally meet this standard. Id.

What does constitute irreparable harm? The most common example is described as “’cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). A litigant must carefully consider, by reviewing existing cases, whether the harm of the order would be considered irreparable by the appellate court.

Departure From the Essential Requirements of Law

Once you prove the harm is irreparable, you still cannot get relief on a writ of certiorari unless you also demonstrate to the court that the trial court’s ruling is a “departure from the essential requirements of law.’ This phrase means, for example, that the law is very clear, and the violation of that clearly established principle of law results in a miscarriage of justice. It has to be more than just the appellate judges simply disagreed with the circuit court’s determination and interpretation of the applicable law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1094 (Fla. 2010).

Successful Writs of Certioari Are and Should Be Rare

The Florida Supreme Court does not want litigants to run to the appellate courts for every little disagreement with the trial judge. That is why it says that “common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 349 (Fla. 2012) (citation omitted).

There Are Other Writ of Certiorari Standards In Florida

This post talks about the most common type of writ of certiorari, but there may be other times the term writ of certiorari is used in Florida Courts to apply to different situations. Those other situations also have different standards of review. If you have a question about whether you should file a writ of certiorari, or if the other side of your litigation has filed a writ of certiorari and you need help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.

Hurricane Dorian approaching Florida

How Does a Hurricane Affect Court Deadlines? (Dorian Edition)

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Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Even though we currently have sunny skies, many courts in Florida are closed today due to the threat of Hurricane Dorian (Specifically, the Second and Third Districts are closed today, and the Fourth and Fifth Districts are closed today and tomorrow, with the First and Florida Supreme Court still open as of this writing. How does that affect court deadlines? The short answer: In Florida state courts, you won’t know until the storm is over, so don’t count on a deadline moving. And in Federal Court, the courthouse being closed does not mean you can’t file, so your best bet is to meet any deadline today. Here’s the rules-geek long answer:

Deadlines in Florida State Courts

An emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(a)(6)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties. Right now, the Florida Supreme Court’s emergency page states:

After a storm, orders will be issued by the Chief Justice retroactively extending deadlines in storm-damaged areas. Attorneys and others who missed legal deadlines or hearing dates in areas hard-hit by a hurricane will be protected by these orders, which will be issued once the courts in these areas reopen. They will be posted on our Administrative Orders page when issued.

(This from the Florida Supreme Court Emergency Page as of noon on September 3, 2019). As of this writing, there are no such orders in place, since the threat is not yet over. Check the Court’s administrative orders emergency page for updates. But also, we have not actually been hit so far, so I would be concerned that the Court is not going to ultimately extend deadlines for all. Even with Courts closed, meet all deadlines today, or timely seek extensions. The Florida appellate courts, in particular, are generous with timely-requested enlargements, so don’t hesitate to ask the Court for them.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

We did this analysis for Hurricane Matthew, so check out our prior post on that one.

Deadlines in Federal Courts

The Federal Rules of Appellate Procedure state that when calculating deadlines computed as days:

if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

Federal Rule of Appellate Procedure 26(a)(2)(C). The Federal rules have an additional helpful provision expressly addressing “Inaccessibility” of the Clerk’s Office:

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s
office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended
to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

Federal Rule of Appellate Procedure 26(a)(3). But remember, a closure of the physical building does not make the clerk’s office inaccessible. For example, the Middle District of Florida website currently states:

UPDATE: 7:45 p.m. | Monday, September 2, 2019

On Tuesday, September 3, 2019, the Jacksonville, Ocala, and Orlando divisions are closed, and the Fort Myers and Tampa divisions are open.

On Wednesday, September 4, 2019, the Jacksonville division is closed, and the Fort Myers, Ocala, Orlando, and Tampa divisions are open.

CM/ECF remains available. The website will be updated if additional closures are required.

And the Eleventh Circuit does not even mention the hurricane on its website as of this writing, but since all filings are supposed to be made through ECF or through Atlanta, any “inaccessibility” argument won’t get very far.

Requesting Extensions After the Fact

Remember that if you miss a deadline in most courts, you have a higher burden to prove entitlement to the extension. Both state and federal courts are going to require a showing of good cause and excusable neglect. So meet your filing deadlines today, or at the very least get extension request on file before the deadline passes.

Pleading and the Many Faces of Waiver

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A drawing of a man running with a football on the cover of Colliers Magazine 1901


Don’t drop the ball
on pleading and waiver issues!

Image courtesy The Miriam and Ira D. Wallach Division of Art, Prints and Photographs: Art & Architecture Collection, The New York Public Library Digital Collections. 1890 – 1907.


We won! Today in Derouin v. Universal American Mortgage Company, LLC, Case No. 2D17-1002 (Fla. 2d DCA August 22, 2018)(.pdf), we earned a total victory for our clients the Derouins, reversing the foreclosure judgment entered against them after trial and ordering entry of an involuntary dismissal of the claims against them.

Beyond the wonderful result for our clients, the 15-page opinion is chock full of great appellate nuggets that have implications for all trial lawyers and their clients on issues of pleading requirements, waiver, trial by consent, and the right of a client to direct communication through his or her attorney. Here’s a breakdown of the take away lessons.

Pleading and Avoiding Conditions Precedent

Like many contracts, the mortgage in this case contained notice provisions that create a condition precedent to suit — that is, the party seeking to enforce the contract must first do some act before filing suit in order to maintain suit. Here, that condition precedent was compliance with a pre-suit “face-to-face” meeting requirement imposed by Federal law on certain kinds of mortgages and incorporated by reference into the mortgage. Generally, a plaintiff is permitted to allege generally in the complaint that “all conditions to suit have been met or waived.” The burden is then on the defendant to specifically deny that general allegation. Some cases on this issue send a mixed message as to whether failing to specifically deny the allegation, but pleading the same issue in your defenses, or making a specific denial but not also pleading as an affirmative defense, is sufficient to make compliance with conditions precedent an issue at trial. The Court here discussed the unsettled law and decided it didn’t need to make a definitive holding on this issue, since the Derouins had done both. Still, the Court placed the burden on plaintiff to prove it complied with the conditions precedent, and then found that plaintiff had not made that proof.

Practice Tip: Always deny conditions precedent with specificity in the answer and, in an abundance of caution, also plead failure to comply as a defense. Maintain it is the plaintiff’s burden, and argue as such at the close of plaintiff’s case.

Pleading Avoidances in a Reply

The plaintiff’s argued that the Derouins waived their objection to compliance with the face-to-face counseling condition precedent for two reasons we’ll discuss in detail in the next section. But aside from the merits of the waiver argument, the appeal court concluded that “Because Universal failed to address the waiver issue by reply to an affirmative defense, the trial court could not award Universal relief on such a basis.”

Practice Tip: Remember to plead any “defense to a defense,” whether legal or factual, as an avoidance in a reply. You will waive your waiver arguments (or other avoidances) if you do not plead them.

Trial by Consent

Even though the Bank failed to plead waiver, it argued that the issue of waiver was tried by consent, citing Fla. R. Civ. P. 1.190(b). A party tries an issue by consent when it fails to object to the admission of evidence supporting the un-pleaded argument. The Court found that evidence that came in was relevant to other issues in the case, and so its admission without objection was not a waiver. The Court also noted that the Derouin’s counsel expressly stated in opening argument that the Bank never raised any excuse for non-compliance in its pleadings. The Derouins also expressly made the argument in a written post-trial memoranda ordered by the trial court. The Court therefore rejected the notion that the issue had been tried by consent.

Practice Tip: Mention in your opening statement that you object to trying issues by consent. And if not relevant to your defenses, object to testimony coming in to support any issues outside of the pleadings. The proper objection is to relevance, and if you can, also state “outside the scope of the pleadings.” Bring the argument home during oral or written closing arguments.

Waiver

The trial court found that the Derouins had waived their right to face-to-face counseling in two ways. First, the trial court found that Mrs. Derouin advising someone who called to discuss the issue “that I contacted an attorney and they should direct all questions to the attorney” indicated that the Derouins rejected a face-to-face meeting. Second, the trial court found that the Derouin’s refusal to agree to mediation after suit had been filed also constituted a waiver of the right to pre-suit counseling.

The Second District rejected both of these rulings. The Court found that “There was no evidence Universal or its servicer was prohibited from asking the Derouins for a face-to-face meeting through their attorney, nor was there any evidence that the Derouins would not participate in one if asked.” Derouin at 11. The Court also rejected the notion that a post-suit action could indicate a waiver of pre-suit requirements, reinforcing an important older Florida Supreme Court case holding that a party’s right to sue “must be measured by the facts as they exist when the suit was instituted.” Derouin at 11, citing Voges v. Ward, 123 So. 785, 793 (Fla. 1929).

Practice Tip: Argue only the facts at the time of suit when arguing compliance with conditions precedent. Also, clients may defer to their attorneys without waiving their rights.

Great job to Dan Rock as trial co-counsel for getting that record preserved. The appeal was a true team effort, with Jared Krukar writing the majority of the briefing and Dineen Wasylik conducting oral argument.