Commerce Nat. Bank in Lake Worth v. Safeco Ins. Co of America, 41690
| Decision Date | 11 October 1973 |
| Docket Number | No. 41690,41690 |
| Citation | 284 So.2d 205 |
| Parties | COMMERCE NATIONAL BANK IN LAKE WORTH, Petitioner, v. SAFECO INSURANCE COMPANY OF AMERICA, etc., Respondent. |
| Court | Florida Supreme Court |
Frank E. Booker, of Ryan, Taylor, Booker & Law, North Palm Beach, for petitioner.
John R. Beranek, of Jones, Paine & Foster, West Palm Beach, for respondent.
Certiorari was granted on account of conflict between the decision of the District Court below, 252 So.2d 248 (4th D.C.A.1971) and decisions cited in the dissent contained therein. Further review has dispelled any notion of conflict and the writ now appears to have been improvidently issued.
Two matters bear discussion: the first relates to the record submitted in support of the petition; the second relates to the theory of conflict advanced by petitioner.
The petition included the following statement:
Petitioner deemed the above sufficient under F.A.R. 4.5, subd. c(6), 32 F.S.A.:
Thereafter respondent Safeco entered a Motion to Quash and Dismiss summarized by the following excerpt:
While it is apparent from the cases that we have, upon occasion, considered dissents in determining jurisdictional conflict, the Motion to Quash entered in the instant case presents an opportunity to comment on the rationale of considering dissents when no other portion of the record proper is presented for consideration other than the majority and dissenting opinions. 1
When facts and testimony are set forth in a majority opinion, they are assumed to be an accurate presentation upon which the judgment of the court is based. However, a dissent does not rise to a similar level of dignity and is not considered as precedent; note, for example, that West Publishing Company does not offer head-notes for dissents, regardless of their legal scholarship. By definition, a dissent contains information, interpretations or legal analysis which has been rejected, in whole or part, by the majority. It is also possible that the majority accepts matters set forth in the dissent, but for other reasons declines to follow its line of thought. The majority is under no compulsion to respond to a dissent or to set out the measure of their reluctance to agree. The issuance of a per curiam opinion without comment or citation of authority remains the prerogative of the majority.
Nonetheless, a certain undefined presumption exists that an appellate judge, when expounding on the record, would not purposefully seek to mislead. Therefore, an attorney examining the facts and testimony (as opposed to the conclusions) set forth in the dissent, may have cause to file a petition for conflict certiorari for reasons elucidated in the dissent. 2 Since F.A.R. 4.5, subd. c(6) requires that only so much of the record as justifies determination of conflict is to be presented with the petition, the opinion alone with its accompanying dissent may suffice.
It is always proper for the brief in opposition to certiorari to point to the deficiencies of the dissent when examined in light of other elements of the record proper. Moreover, the majority opinion itself, if not per curiam without comment, may set forth facts sufficient to overcome any alleged conflict arising out of the dissent's presentation of facts; the presumption would be that any factual presentation by the majority would supersede, in terms of prima facie validity, any factual presentation in the dissent, if both were in...
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...with the record, is a sufficient basis for the exercise of our conflict jurisdiction. See Commerce National Bank in Lake Worth v. Safeco Insurance Co. of America, etc., 284 So.2d 205 (Fla.1973). I agree with Judge Owen's conclusions as to the two questions, but supplement them with the foll......
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...of the Florida Constitution. 3 In my view, however, the dangers of that practice, one of which is described in our opinion in Commerce Nat'l Bank v. Safeco Ins. Co., 4 far overshadow any value that might be derived in any particular case from our exercise of conflict jurisdiction based on d......
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...followed without amplification of reasoning. E. g., Autrey v. Carroll, 240 So.2d 474 (Fla.1970); Commerce Nat'l Bank in Lake Worth v. Safeco Ins. Co., 284 So.2d 205 (Fla.1973). In the Commerce National Bank decision, however, the impediments to relying on the factual statement contained in ......
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...invoking our jurisdiction. That a dissenting opinion may be the predicate for conflict certiorari, see Commerce National Bank in Lake Worth v. Safeco Ins. Co. (Fla.1973), 284 So.2d 205. The conflict of decisions consists in the obvious abuse of discretion which is reflected in the niggardly......