Foley v. Weaver Drugs, Inc., 32357

Decision Date28 April 1965
Docket NumberNo. 32357,32357
Citation177 So.2d 221
PartiesRose M. FOLEY and James S. Foley, her husband, Petitioners, v. WEAVER DRUGS, INC., a Florida corporation, Respondent.
CourtFlorida Supreme Court

James C. Shepherd, Green & Hastings, and Samuel Z. Goldman, Miami, for petitioners.

Dean, Adams & Fischer, Miami, for respondent.

ROBERTS, Justice.

This cause is before the court on petition for certiorari to review a decision of the District Court of Appeal, Third District, Foley v. Weaver Drugs, Inc., 146 So.2d 631, upon an alleged conflict with a decision of the District Court of Appeal, Second District, in Canada Dry Bottling Co. of Florida, Inc. v. Shaw, Fla.App.1960, 118 So.2d 840.

The decision of the Third District Court of Appeal brought here for review is an order of affirmance without opinion. So, we are confronted at the outset with the problem that has, since the decision in Lake v. Lake, 103 So.2d 639, troubled this court when a per curiam decision without opinion of a district court is brought here for review, and whether or not such decision by the district court is reviewable here by conflict certiorari.

The decision in the Lake case was rendered in 1958, not long after revised Article V of our Constitution, F.S.A., became effective and before the new appellate court system created thereby was in 'full swing.' It was there held that a 'per curiam' decision without opinion of a district court of appeal would not be reviewed by this court upon petition for certiorari based on our 'direct conflict' jurisdiction except in those rare cases where the 'restricted examination required in proceedings in certiorari' revealed that 'a conflict had arisen with resulting injustice to the immediate litigant.' This was some seven years ago; and it would seem that, by now, the jurisdictional question presented in such a case could be answered almost on a 'cut-and-dried' basis. Unfortunately, however, the question remains just as troublesome now as it was when the Lake case was decided. We have deemed it advisable, therefore, to take a new look at the problems inherent in the review by this court, on a 'direct conflict' petition for certiorari, of a 'per curiam' decision without opinion of a district court of appeal and to re-examine the decision in the Lake case as to this matter.

This court obviously formulated the policy with respect to such decisions, as in the Lake case, in the thought that such decisions would, for the most part, be confined to their traditional function of disposing of an appeal where the point of law involved 'is so clear that it is not considered necessary to elaborate it by an extended discussion,' Newmons v. Lake Worth Drainage District, Fla.1956, 87 So.2d 49, so that in most cases no actual conflict could be found to exist, and that to require this court to 'dig into a record' to determine whether there was a conflict would, in effect, 'give the petitioner an unauthorized second day in an appellate court when he had already had the one day the Constitution has given him,' South Florida Hospital Corp. v. McCrea, Fla.1960, 118 So.2d 25.

In the almost seven years since Lake was decided, hundreds of decisions of the district courts of appeal have been brought here for review under our 'direct conflict' jurisdiction. Not an inconsiderable number of these have been 'per curiam' decisions; and it goes without saying that, in each such case, the petitioner strongly urged that his was an exceptional case and thus entitled to review under the exception stated in the Lake decision, referred to above. In each of such cases, some members of the court have examined the 'record proper'--meaning the written record of the proceedings in the court under review except the report of the testimony--to determine the probable existence of a direct conflict and whether such conflict resulted in 'injustice to the immediate litigant' sufficient to invoke the exercise of our power of review under the exception noted in the Lake case. In most cases the petition was simply denied without opinion--and, occasionally, with a dissenting opinion. See Donoghue v. Beeler, Fla.1963, 149 So.2d 534. In others, we have found probable conflict and have remanded the cause to the appellate court with the request that an opinion be written setting forth the theory, reasoning and authorities upon which it based its per curiam judgment. See Rosenthal v. Scott, Fla.1961, 131 So.2d 480; State v. Bruno, 104 So.2d 588. (A similar procedure was followed in Snedeker v. Vernmar, Ltd., Fla.1962, 139 So.2d 682, where probable jurisdiction of a constitutional question, on an appeal directly from the trial court, was made to appear.)

We have also reviewed the 'record proper' of a per curiam decision of an appellate court claimed to be in conflict with a later decision of another court of appeal and have exercised our 'conflict jurisdiction' to make uniform and harmonious the law on the particular point involved in the two decisions. See Fidelity Construction Co. v. Arthur J. Collins & Son, Inc., Fla.1961, 130 So.2d 612. We there said:

'There exists a prima facie conflict between the two decisions upon the pivotal point of law and on closely related facts, and one which is in this instance nonetheless direct because of the failure of the court to write an opinion in the Shirey case [Shirey v. Thompson, Fla.App., 115 So.2d 203] to substantiate its decision therein.'

It appears, therefore, that in actual practice this court has not been relieved of any substantial portion of its workload by the policy announced in the Lake case respecting per curiam decisions. The only practical distinction between our review of a per curiam decision without opinion, and one that is supported by an opinion, is that in the former, we go directly to the 'record proper' to determine probable jurisdiction, whereas in the latter case we 'examine the opinion [where the opinion disposes of the questions presented for review] upon which the district court of appeal decision is based, and if the opinion, on its face, shows the probable existence of a direct conflict between the two decisions, on the same point of law, the writ of certiorari may issue and, after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any direct conflict between the decisions on the same point of law may be reconciled.' [Bracketed portion supplied.] Seaboard Airline Railroad Co. v. Branham, Fla.1958, 104 So.2d 356.

Nor is there any legal distinction between the effect of a per curiam decision without opinion, and one that is supported by an opinion, so that one is not entitled to and should not be given any more 'verity' than the other. It is the judgment which constitutes the decision in litigated cases, and the opinion merely sets forth the reasons supporting the judgment, but where there is an opinion we have held that it becomes a part of the decision. See Zirin v. Charles Pfizer & Co., 128 So.2d 594, 596; and Seaboard Airline Railroad Co. v. Branham, supra. As stated by the late and revered Justice Terrell in Newmons v. Lake Worth Drainage District, supra, 87 So.2d 49:

'Traditionally it may be pointed out that a 'per curiam' is the opinion of the court in which the judges are all of one mind and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion. Such an opinion carries no less weight because of the nomenclature that designates it as such.' (Emphasis supplied.)

and as pointed out by Mr. Justice Hobson (Ret.) in his dissenting opinion in Donoghue v. Beeler, supra, 149 So.2d, at page 536, in a number of cases considerable reliance has apparently been placed on such decisions, citing many decisions of this court and of the district courts of appeal in support of his statement.

Our duty, as the 'supervisory body in the judicial system' of this state, Ansin v. Thurston, Fla.1958, 101 So.2d 808, 810, is to maintain uniformity and harmony in the decisions of our appellate courts, and to resolve the conflict created by a decision which is, 'out of harmony with a prior decision of this Court of another Court of Appeal on the same point, thereby generating confusion and instability among the precedents.' Kyle v. Kyle, Fla.1962, 139 So.2d 885, 887. As stated in Lake v. Lake, supra, 103 So.2d 639, 642:

'To remain stable, the law administrered by the Supreme Court and the district courts of appeal must be harmonious and uniform. Were there not a central authority to keep it so it could happen that a district court of appeal would decide a given question of law one way and another district court of appeal another way, or one of them contrary to a former decision of the Supreme Court, through oversight or inadvertence, resulting in obvious confusion. To forestall any uncertainty that might derive from such situations, however infrequent, the provision was included in the amendment.'

In State ex rel. Gordon, Relator v. Trimble et al. (Judges constituting the Kansas City Court of Appeal), 318 Mo. 341, 300 S.W. 475, the Missouri court said:

'Respondents [district court] did not discuss this rule, but their opinion approving the action of the trial court in sustaining the demurrer to the evidence offered in support of relator's counterclaim necessarily involved such a ruling. In State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869, we held that a Court of Appeals will be regarded as having decided a question consistently with the judgment rendered, whether or not it discussed the question in its opinion, if the decision of such question was necessarily involved and must have been decided consistently with the judgment before the conclusion reached could be logically and reasonably reached.

'Respondents could not have affirmed the action of the trial court in sustaining the bank's demurrer to the evidence on relator's counterclaim...

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    • May 27, 2004
    ...These opinions eroded the finality of district court jurisdiction,10 causing Justice Thornal, in a dissent in Foley v. Weaver Drugs, Inc., 177 So.2d 221, 234 (Fla.1965), to lament: "If I were a practicing lawyer in Florida, I would never again accept with finality a decision of a District C......
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    • September 22, 2014
    ...Bravo, 577 F.3d at 1326.9 Mr. Uffner's assault on per curiam affirmances, see Pl.'s Resp. 6 n. 4, is unfounded. See Foley v. Weaver Drugs, Inc., 177 So.2d 221, 224 (Fla.1965) (“Nor is there any legal distinction between the effect of a per curiam decision without opinion, and one that is su......
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2 books & journal articles
  • Asking for written opinion from a court that has chosen not to write one.
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    ...decision by appellate judges was a possibility recognized by Justice Drew in his concurring opinion in Foley v. Weaver Drugs, Inc., 177 So. 2d 221 (Fla. 1965). Conclusion and Recommendations Nothing in Florida law requires a written decision in every district court decision. The voters of F......
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    • March 22, 2006 its entirety, "PER CURIAM. Affirmed." Lake v. Lake, 98 So. 2d 761 (Fla. Dist. Ct. App. 1957). (14) See Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 222 (Fla. (15) Lake, 103 So. 2d at 640. (16) Id. (17) Id. at 643; see FLA. CONST. of 1885, art. V, [section] 4(2) (1956). (18) See Foley, 17......

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