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What is a Writ of Certiorari in Florida State Courts?

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.

Fifth District Changes Procedures for Extensions of Time

The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

UPDATE: We’ve created a handy guide to help you keep the different courts’ rules straight. Click here to sign up for our newsletter and get a link to download the guide!