Sumner v. Sumner, 97-03513
| Citation | 707 So.2d 934 |
| Decision Date | 18 March 1998 |
| Docket Number | No. 97-03513,97-03513 |
| Parties | 23 Fla. L. Weekly D785 J. Curtis SUMNER, Petitioner, v. Selma R. SUMNER, Respondent. |
| Court | Court of Appeal of Florida (US) |
James P. La Russa, Tampa, for Petitioner.
J. Curtis Sumner petitioned this court for a writ of prohibition to review the trial court's denial of his motion to disqualify the assigned judge. His complaint arose from the trial judge's order granting an amended motion for rehearing without affording him an adequate opportunity to respond to the motion. Although failure to provide a fair opportunity to be heard may result in error subject to correction on appeal or, even occasionally, by common law certiorari, the allegations in this petition are not facially sufficient to warrant the issuance of a writ of prohibition to disqualify the trial judge. Thus, at an earlier time we denied the petition but indicated in an unpublished order that this opinion would follow.
The impact on post-trial review of a denial, without opinion, of a petition for writ of prohibition has been the subject of several decisions from the district courts of this state since this court in 1979 first dealt with the issue in Public Employees Relations Commission v. District School Board of De Soto County, 374 So.2d 1005 (Fla. 2d DCA 1979) [hereinafter PERC ]. In that opinion we considered the decisions in other jurisdictions, for want of reference to any in Florida, and adopted the majority rule from cases collected in H.C. Lind, Annotation, Judgment Granting Or Denying Writ Of Mandamus Or Prohibition As Res Judicata, 21 A.L.R.3d 206, § 18 (1969). We wrote that "[t]he denial of a writ of prohibition without opinion is not res judicata unless the sole possible ground of the denial was that the court acted on the merits of the jurisdictional question, or unless it affirmatively appears that such denial was intended to be on the merits." PERC, 374 So.2d at 1010.
In 1986 the Third District announced in Obanion v. State, 496 So.2d 977, 980 (Fla. 3d DCA 1986), that despite a "certain looseness in our past practices," the denial of a petition for writ of prohibition would constitute a ruling on the merits, foreclosing post-trial appellate review, unless otherwise indicated. See also Nordqvist v. Nordqvist, 586 So.2d 1282 (Fla. 3d DCA 1991); Freeman v. State, 554 So.2d 621 (Fla. 3d DCA 1989).
This position was subsequently endorsed by Judge Anstead in a concurring opinion in DeGennaro v. Janie Dean Chevrolet, Inc., 600 So.2d 44 (Fla. 4th DCA 1992). The Florida Supreme Court commented approvingly of the Obanion result and the concurrence in DeGennaro, but declined to adopt it in Barwick v. State, 660 So.2d 685, 690-91 (Fla.1995).
In 1997 the Fourth District joined the Third District by holding that prohibition petitions which are denied without comment are deemed denied on the merits and thus not subject to further review on direct appeal. See Hobbs v. State, 689 So.2d 1249 (Fla. 4th DCA 1997). Since then the Third District again applied this principle in Edwards v. State, 689 So.2d 1251 (Fla. 4th DCA 1997).
Subsequent case law from other districts adopts a different approach than we announced in PERC. Thus, we are compelled to revisit the question. Instead of endorsing the approach embraced by the Third and Fourth Districts, however, we see no reason to abandon the rule articulated in PERC. We indicated in PERC that the issue in a prohibition proceeding is finally disposed of if the court affirmatively demonstrates that intent, most typically reflected in a denial with prejudice, or if "the sole possible ground of the denial was that the court acted on the merits of the jurisdictional question." PERC, 374 So.2d at 1010. In the interest of informing litigants and their attorneys of this court's decisional policy in matters of this kind, we confirm the procedures declared in PERC in its application to simple orders denying prohibition petitions for which further appellate review is foreclosed, and these will continue to be denied with prejudice. The Florida Supreme Court...
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