Department of Legal Affairs v. District Court of Appeal, 5th Dist., No. 62880

• Court: United States State Supreme Court of Florida
• Writing for the Court: McDONALD; ALDERMAN; BOYD; BOYD
• Citation: 434 So.2d 310
• Parties: DEPARTMENT OF LEGAL AFFAIRS, Petitioner, v. DISTRICT COURT OF APPEAL, 5TH DISTRICT, Respondent.
• Docket Number: No. 62880
• Decision Date: 07 July 1983

Page 310

434 So.2d 310 DEPARTMENT OF LEGAL AFFAIRS, Petitioner,
v.
DISTRICT COURT OF APPEAL, 5TH DISTRICT, Respondent. No. 62880. Supreme Court of Florida. July 7, 1983.

Jim Smith, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for petitioner.

James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.

McDONALD, Justice.

The State of Florida Department of Legal Affairs complains of an unreported order entered by the Fifth District Court of Appeal which reads:

Page 311

Counsel for appellant shall not cite decisions of appellate courts which have no written opinion.

The state's petition, received pursuant to article V, section 3(b)(7), Florida Constitution, requests an order commanding the district court to rescind its order and to cease directing counsel for the state as to what authorities may be cited in appellate briefs and other pleadings. After receiving a response to the state's petition and after considering this matter, we deny the state's petition and approve the order of the district court.

The issue is whether a per curiam appellate court decision with no written opinion has any precedential value. We hold that it does not.

In reaching this conclusion we note that this ruling is contrary to at least one prior decision of this Court. In State Department of Public Welfare v. Melser, 69 So.2d 347 (Fla.1954), this Court grappled with the question of whether naturopathic physicians had the authority to prescribe drugs. A trial judge had apparently ruled in a prior case which had been affirmed without opinion, In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742 (1947), that a naturopath could prescribe drugs. In discussing that case the original majority opinion stated:

"An affirmance without an opinion is an approval only of the point decided or result reached by the court below, and not of the opinion and the conclusions of law of the lower court, so as to establish a precedent for future action."

69 So.2d at 350-51, quoting 21 C.J.S. Courts § 186(c) (1940). On rehearing, by a four to three vote, the Court recognized the prior per curiam affirmed judgment and followed it, stating:

It is the view of said Justices and the Associate Justice that not only is that issue not presented for our consideration in this appeal but that since the precise and only point decided by the Circuit Court of Pinellas County in "In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742," was the statutory right of naturopathic physicians to prescribe narcotic drugs included in the term phytotherapy, the affirmance of that judgment by this Court--even without opinion--settled the law to that extent and that this Court, in this case, should not be drawn into an unnecessary reconsideration of its former decision.

Id. at 353. ¹ Moreover, Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), in discussing whether this Court should construe a per curiam decision of a district court to conflict with a written decision of another court and thus grant review because of conflict jurisdiction, states:

Nor can we escape that in common parlance, an affirmance without opinion of a trial court by a district court is generally deemed to be an approval of the judgment of the trial court, and becomes a precedent, certainly, in the trial court rendering the judgment.

Id. at 225-26. ²

The district courts of appeal which have addressed this issue, however, have been firm in holding that per curiam affirmances without opinion have no precedential value. In Schooley v. Judd, 149 So.2d 587 (Fla. 2d DCA), rev'd on other grounds, 158 So.2d 514 (Fla.1963), the Second District Court of Appeal noted that the trial judge had relied upon a per curiam decision without opinion by this Court and stated: "We are of the view that such a decision does not establish any point of law; and there is no presumption that the affirmance was on the merits." 149 So.2d at 590. The district court, therefore, declined to follow the trial court's conclusions. In Acme Specialty Corp. v. City of Miami, 292 So.2d 379 (Fla.

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3d DCA 1974), the third district, in commenting on a prior decision, stated:

As noted before, this was a per curiam opinion with no reasons or authorities given and, although this may be sufficient to support a plea of res judicata as between the original parties, such per curiam affirmance opinion does not stand for any general pronouncement of principles of law that might have been urged by the parties in their pleadings and briefs.

Id. at 380 (footnote omitted). That court reiterated its position in Berek v. Metropolitan Dade County, 396 So.2d 756, 759 n. 3 (Fla. 3d DCA 1981), approved on other grounds, 422 So.2d 838 (Fla.1982), stating: "We do not regard a per curiam affirmance without opinion as having precedential significance for other cases, notwithstanding that such an affirmance may...