Bared & Co., Inc. v. McGuire

• Citation: 670 So.2d 153
• Decision Date: 20 March 1996
• Docket Number: No. 95-2984,95-2984
• Parties: 21 Fla. L. Weekly D707 The BARED & COMPANY, INC., Petitioner, v. Timothy McGUIRE and United Sheet Company, Respondents.
• Court: Court of Appeal of Florida (US)

Page 153

670 So.2d 153

21 Fla. L. Weekly D707

The BARED & COMPANY, INC., Petitioner, v. Timothy McGUIRE and United Sheet Company, Respondents.

No. 95-2984.

District Court of Appeal of Florida Fourth District.

March 20, 1996.

Petition for Writ of Certiorari to the Circuit Court of the Seventeenth Judicial Circuit, Broward County, C. Lavon Ward, Judge.

Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for petitioner.

No appearance required for respondents.

EN BANC

FARMER, Judge.

A defendant in a civil action sought a writ of common law certiorari in this court to review a pretrial order granting a protective order against taking a second, successive deposition. A panel of this court previously determined that the petition failed to show clearly that petitioner was likely to suffer irreparable harm from the order for which it would have no remedy on appeal. Petitioner then moved for clarification or reconsideration of the panel decision, wondering if our order of dismissal was a "typographical" error and if the order should have said "denied."

After an opinion en banc on the motion for clarification or reconsideration had been prepared, and while that opinion was circulating among the judges of this court, petitioner filed a voluntary dismissal of this case. Ordinarily a voluntary dismissal of a case involving an extraordinary writ would cause us to quash a proposed but unreleased opinion. On the other hand, there is authority for the proposition that an appellate court has discretion to release an opinion after a voluntary dismissal where the court had already expended substantial effort in preparing an opinion before the dismissal and the public interest will be thereby subserved. State v. Schopp, 653 So.2d 1016, 1018 (Fla.1995) (even after timely voluntary dismissal, reviewing court has discretion to retain jurisdiction and proceed with cause). Accordingly, because this case presented us with an opportunity to clarify how we consider the kind of petitions presented here and thus for the benefit of the bench and bar, we have decided to release an opinion explaining our decision in this case.

District Courts of Appeal in Florida have jurisdiction to review certain nonfinal orders of trial courts by appeal and, at the same time, to review other non-final orders by separate certiorari jurisdiction. Rule 9.030(b)(1)(B) provides that the district courts shall review by appeal "nonfinal orders of the circuit courts as prescribed by rule 9.130." Fla.R.App.P. 9.030(b)(1)(B). ¹ Rule 9.030(b)(2)(A) provides that parties may seek the certiorari jurisdiction of the district courts to review "nonfinal orders other than as prescribed by rule 9.130." [e.s.] Fla.R.App.P. 9.030(b)(2)(A).

The drafters of the rules explained the policy behind this dual jurisdiction as follows:

"The advisory committee was aware that the common law writ of certiorari is available at any time and did not intend to abolish that writ. However, because that writ provides a remedy only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that because the most urgent interlocutory orders are appealable under this rule, there will be very few cases in which common law certiorari will provide relief." [e.s.]

Fla.R.App.P. 9.130 (1977 Committee Notes). These two rules thus define our jurisdiction to review nonfinal orders in civil cases. And the committee commentary to rule 9.130 makes clear that certiorari jurisdiction is conterminous with the traditional usage of the writ itself.

The supreme court has distilled the elements for review by common law certiorari as follows:

"Certiorari is a discretionary common-law writ which, in the absence of an adequate remedy by appeal or writ of error or other remedy afforded by law, a court of law may issue in the exercise of a sound judicial discretion to review a judicial or quasi judicial order or judgment that is unauthorized or violates the essential requirements of controlling law, and that results or reasonably may result in an injury which section 4 of the Declaration of Rights of the Florida constitution commands shall be remedied by the due course of law in order that right and justice shall be administered. Hartford Accident & Indemnity Co. v. City of Thomasville, 100 Fla. 748, 130 So. 7." [e.s.]

Kilgore v. Bird, 149 Fla. 570, 577, 6 So.2d 541, 544 (1942). As the court further elaborated:

"The essential considerations are whether the judgment, or the directions made a part of it, require an unauthorized proceeding or a departure from the essential requirements of the law and reasonably may cause substantial injury for which no other adequate remedy is afforded by the law. Hartford Accident & Indemnity Co. v. City of Thomasville, 100 Fla. 748, 130 So. 7; Miami Poultry & Egg Co. v. City Ice & Fuel Co., 126 Fla. 563, 172 So. 82; Robinson v. City of Miami, 138 Fla. 696, 190 So. 35; Bringley v. C.I.T. Corp., 119 Fla. 529, 160 So. 680; Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483, 140 So. 218." [e.s.] 149 Fla. at 581, 6 So.2d at 545. The Kilgore court stressed that this kind of review was available "if it satisfactorily appears that no other adequate remedy is afforded by law." [e.s.] Id. Kilgore has since been explicitly reaffirmed by the court in Martin-Johnson Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) ("order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal," citing Kilgore ).

In short, there are two indispensable ingredients to common law certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable injury to the petitioner that cannot be corrected on final appeal (2) caused by a departure from the essential requirements of law. Because of this dual nature, courts traditionally considered applications for common law certiorari, as Judge Altenbernd has recently reminded us, with a two-step approach:

"Prior to 1939, a petition for writ of certiorari involved a two-stage proceeding. The court first determined whether it had jurisdiction to review the order. It then received additional briefing and decided whether the order departed from the essential requirements of the law. William A. Haddad, Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 207, 208 (1977)."

Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). ² Passing to modern procedures, he explained:

"Although the separate briefing stages have been eliminated, it is still necessary for an appellate court to conduct a jurisdictional analysis prior to testing whether the nonfinal order passes the standard of review on its merits, i.e., whether the order is a 'departure from the essential requirements of law.' Thus, just as an appellant must establish that a nonfinal order falls within one of the authorized categories in Florida Rule of Appellate Procedure 9.130 before this court has the power to review the merits of the nonfinal order by appeal, a petitioner must establish that a [nonfinal] order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law. If the jurisdictional prongs of the standard three-part ³ test are not fulfilled, then the petition should be dismissed rather than denied."

Id. We agree that the very first consideration underlying a petition for common law certiorari review of nonfinal orders in civil cases is, of necessity, an assessment of jurisdiction. Jurisdiction, in turn, depends on the absence of effective appellate review at the end of the case in the trial court.

Although common law certiorari is a discretionary writ, ⁴ the question of irreparable harm and thus our jurisdiction is not discretionary. It is only if the petition demonstrates harm that cannot be corrected on final appeal that we have the power to exercise discretion to grant or withhold the writ. It must be made, at least prima facie, clear in the petition that the harm is incurable by final appeal.

Like the second district, in the past we have not been careful to make our jurisdictional decisions in these cases manifest. More often than not, we have denied such petitions when we were really deciding that we lacked jurisdiction because the petitioner had simply failed to make clear that irreparable harm or injury had resulted from the order. Moreover, our denials were sometimes taken as decisions on the merits of the order when they actually reflected merely that we lacked the power to review them. Accordingly, we have seized on the present occasion to clarify our dispositions and manner of proceeding.

When we receive a petition for common law certiorari to review a nonfinal order of the circuit court, we will initially study it only to determine if petitioner has made a prima facie showing of the element of irreparable harm. At this stage we will make no determination as to whether the order departs from the essential requirements of law. If petitioner has failed to make a prima facie showing of irreparable harm, we lack jurisdiction and will enter an order dismissing the petition. If we are satisfied that a prima facie showing of our jurisdiction--i.e. that we could not correct the order upon final appeal--has been made, we will then pass on to the next element.

At this next stage, we will study the petition to determine whether it makes a prima facie showing that the order to be reviewed departs from the essential requirements of law. If we then conclude that the petition fails to demonstrate prima facie a departure from the...