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The Florida Bar Journal
April, 2018 Volume 92, No. 4
The Chasm in Florida Appellate Law: Intra-Circuit Conflicting Appellate Decisions

by J. Sebastien Rogers

Page 52


Florida’s circuit courts function in a trial and appellate capacity. In an appellate capacity, they review issues from county court civil and misdemeanor cases and requests for extraordinary writs. As more appellate issues receive review by Florida circuit courts, these tribunals’ decisions lead to an increasing number of conflicting opinions. When conflicting opinions exist within the same circuit, en banc review to alleviate conflicting precedent does not exist as a remedy available to circuit appellate courts. Similarly, circuit courts do not possess statutory authority to certify a conflict with an appellate opinion issued by a panel or judge within the same judicial circuit. This article analyzes the problems resulting from conflicting appellate opinions issued by Florida circuit judges within the same circuit.

Florida Circuit Court Appellate Jurisdiction
The Florida Legislature defines a circuit court as a trial court pursuant to F.S. §26.012(5). In addition to the circuit court’s “exclusive original jurisdiction” in a trial court capacity,1 the legislature grants appellate jurisdiction to the circuit courts to review county court civil judgments pursuant to §26.012(1) and misdemeanor judgments pursuant to F.S. §924.08 (1983).2 Circuit courts also review “administrative action if provided by general law.”3 Regarding the reference to Rule 9.030(c)(1)(C) to “general law,” §26.012(1) authorizes circuit court jurisdiction over “appeals from final administrative orders of local government code enforcement boards.”4 Circuit courts also review interlocutory orders pursuant to Fla. R. App. P. 9.030(c)(1)(B), (c)(2), and 9.130(a)(1). Similarly, Rule 9.140(c)(2) authorizes the state of Florida to appeal non-final orders issued in criminal cases.5 Rule 9.030(c)(3) grants a circuit court original jurisdiction to issue extraordinary writs, such as mandamus and common law certiorari writs.

In summary, circuit appellate courts review issues originating in county courts; administrative tribunals, such as municipal government agencies and legislative bodies; and Florida state agencies, such as the Department of Highway Safety and Motor Vehicles.

For fiscal year 2015-2016, the Florida Office of the State Courts Administrator (OSCA) published statistics regarding case filings in Florida’s circuit and county courts. In particular to Florida’s 11th Judicial Circuit Court, OSCA’s statistics indicate that litigants filed 673,690 cases in the county court civil and criminal divisions.6 From these 673,690 county court cases, litigants appealed civil and criminal issues to the 11th Judicial Circuit’s Appellate Division. In fiscal year 2015-2016, the Florida Legislature authorized 80 circuit judges for the 11th Judicial Circuit.7 Considering the circuit court’s overall appellate jurisdiction, 80 circuit judges in Florida’s 11th Judicial Circuit review direct civil and criminal appeals, interlocutory appeals, and issue extraordinary writs. Thus, 80 circuit court judges develop decisional law applicable to county courts and administrative tribunals. Naturally, 80 judges do not consistently reach the same legal conclusions when resolving an appellate issue, thus, leading to intra-circuit conflicting appellate opinions.

Intra-Circuit Conflicting Appellate Opinions
Florida decisional law contributes to the existence of intra-circuit conflicting opinions. For example, the Fifth District Court of Appeal held that a “circuit court sitting in its appellate capacity was required to consider all decisions of the circuit court in the Ninth Circuit when searching for precedents upon which to base its decision, and, in the absence of a rule of procedure to resolve conflicts among the decisions, to make its independent decision.”8 State v. Lopez, 633 So. 2d 1150 (Fla. 5th DCA 1994), only requires that a circuit appellate court consider other intra-circuit decisions but does not require that a circuit court follow an appellate decision issued by another circuit judge or panel within the same judicial district.

The Fifth District’s Lopez decision impacts circuit appellate courts. Appellate panels within the 11th Judicial Circuit acknowledge that one panel’s decision does not operate as binding precedent upon another panel, thus, occasionally declining to follow an opinion issued by another panel. For example, one circuit panel stated that it must consider the decisions from its appellate division when “‘searching for precedents’” but clearly noted they could “make an independent decision when…disagree[ing] with another panel.”9

The State Farm Fire & Cas. Co. v. Suncare Physical Therapy, Inc., a/a/o Henrisma, 18 Fla. L. Weekly Supp. 776a (Fla. 11th Cir. Ct. July 13, 2011), circuit panel chose not to follow United Automobile Insurance Company v. Diaz, 18 Fla. L. Weekly Supp. 348a (Fla. 11th Cir. Ct. Feb. 3, 2011), cert. den., 3D11-866 (Fla. 3d DCA 2011), even though the Third District Court of Appeal declined to vacate Diaz.10 By directly disagreeing with Diaz, the Henrisma circuit panel created an intra-circuit conflict and destabilized the law regarding examinations under oath in personal injury protection cases. Consequently, county courts in Miami-Dade County encountering factually similar cases lacked clear precedent regarding the examination-under-oath issue. The intra-circuit conflict between Henrisma and Diaz not only impacted the county courts but also influenced a U.S. Court of Appeals. In Nunez v. Geico General Insurance Company, 685 F.3d 1205, 1207 (11th Cir. 2012), the U.S. Court of Appeals for the 11th Circuit reviewed an order dismissing the second count in a complaint, which requested that the federal trial court decide whether Florida’s personal injury protection statute11 permitted examinations under oath as “a prerequisite to receiving” personal injury protection benefits. Geico Insurance Company’s supplemental authority included the Henrisma and Diaz decisions. The 11th Circuit noted that Florida’s circuit appellate courts diverged in their conclusion that examination-under-oath language in Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010), operated as dicta or binding authority.12 Although the federal appellate court believed that the Florida Supreme Court’s language in Custer constituted dicta, the federal panel specifically noted that “Florida law is far from clear” and that the “Florida appellate courts have not decisively ruled on this issue.”13 Ultimately, the Nunez panel certified this issue to the Florida Supreme Court.14

In addition to contributing to a federal appellate court’s decision to certify the issue to the Florida Supreme Court, these diverging circuit court opinions create problems from a practical perspective. Now, attorneys litigating county court cases involving the same or very similar examination-under-oath issues cannot anticipate how a county court judge in Miami-Dade County would rule since Diaz and Henrisma voiced the circuit appellate court’s antithetical positions. The legal instability caused by Diaz and Henrisma also potentially hinders automotive insurance companies from drafting policies in compliance with the examination under oath decisions.

The consequences resulting from intra-circuit conflicting opinions have not evaded the Florida circuit judiciary’s observation. For example, a judge in the 12th Judicial Circuit acknowledged intra-circuit conflict and articulated that the conflict “results in a lack of uniformity.”15 In 2015, a circuit court expressly disagreed with opinions issued by other panels from the same circuit and acknowledged that its “contrary position destabilizes the landscape governing this issue in the county courts.”16

District courts also recognize the problems caused by intra-circuit conflicting opinions. Recently, Judge Logue authored a concurring and dissenting opinion that clearly identified how intra-circuit conflicting opinions negatively impact county court litigants:

“Thus, as happened here, a person filing in county court and appealing to the circuit court obtains a result completely at odds with the result obtained by a different person filing in the exact same county court and appealing to the exact same circuit court. Because there are no further appeals as of right, a litigant wins or loses based upon the predilections of the individual judges who heard the trial and appeal and not upon a coherent body of law that applies to all litigants.”17

Judge Logue also articulated the district court’s complicity in the intra-circuit conflict problem:

“Just as the Florida Supreme Court resolves conflicts among the district courts of appeal, the district courts should similarly resolve conflicts among the circuit courts acting in their appellate capacity. But this is not happening. It is a well-known, but little-discussed defect in our court system that litigants in the county courts often have their cases decided based upon conflicting circuit court appellate decisions.”18

Acknowledging the district court’s participation in destabilizing the law applied by county courts, circuit appellate courts, and attorneys, Judge Logue also proposed that “the current standard for second-tier certiorari includes discretionary review to quash incorrect decisions that conflict with other circuit court appellate opinions in the same circuit and district.”19 The problem identified by Judge Logue and the practical solution suggested by him should remind Florida’s appellate tribunals and practitioners that precedent “assists in providing consistency and predictability, both valuable qualities in law.”20 Although intra-circuit conflicting opinions affect circuit courts, county courts, and attorneys, circuit appellate courts unfortunately lack the authority to remedy their conflicting precedents through en banc review.

En Banc Proceedings
When separate panels within the same district court of appeal issue conflicting opinions, the district court itself may conduct a proceeding en banc:

“A majority of the judges of a district court of appeal participating may order that a proceeding pending before the court be determined en banc . . . . En banc hearings and rehearing shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions. . . .”21

Rule 9.331(a) authorizes en banc proceedings to maintain uniformity in decisions when panels disagree. Rule 9.331(c) only authorizes a district court of appeal to order an en banc hearing on its own motion and prohibits a party from requesting an en banc hearing. In contrast, Rule 9.331(d)(1) permits a party to request rehearing en banc when “such consideration is necessary to maintain uniformity in the court’s decisions.” Thus, district court panels may alleviate intra-district conflicting precedents sua sponte or pursuant to a party’s request for rehearing en banc.

The Rule 9.331 Committee (1982 amendment) articulated its intent to allow district courts of appeal to implement decisional uniformity because the Florida Supreme Court “no longer has jurisdiction to review intra-district conflict.”22 The committee wrote that maintaining “uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by supreme court precedent in the exercise of its conflict jurisdiction,” and “district courts are free, however, to develop their own concept of decisional uniformity.”23 The committee further stated that the “new appellate structural scheme requires the district courts of appeal to resolve conflict within their respective districts through the en banc process.”24 The committee explained that resolving conflicts through the en banc process should “result in a clear statement of the law applicable to that particular district.”25 The focus upon uniformity of decisions suggests the Florida Supreme Court’s expectation that the district courts of appeal would regulate their precedents such that practitioners and litigants may rely upon clear law.

Unlike Rule 9.331’s application to the district courts of appeals, Rule 9.331 does not authorize a circuit appellate court to conduct an en banc hearing or rehearing en banc. For example, the Third District clearly held that Rule 9.331 “is not directed to circuit courts sitting in their appellate capacity.”26 Despite Rule 9.331’s explicit reference to district courts, attorneys have nonetheless filed motions requesting that circuit courts conduct en banc hearings. In response, circuit appellate courts from the 12th, 17th, and 19th judicial circuits have held that Rule 9.331 does not apply to circuit courts.27 Thus, the inability to reconcile intra-circuit conflicting opinions by en banc review or rehearing en banc poses a current and future problem for circuit courts sitting in their appellate capacity.

Certifying Issues to District Courts of Appeal
A circuit appellate court’s inability to reconcile conflicting decisions under Rule 9.331 does not function as the only factor leading to intra-circuit conflicting opinions. Unlike the district courts of appeal and the county courts, Florida law does not authorize circuit appellate courts to certify questions of great public importance or intra-circuit conflicts for review by the district courts of appeal or the Florida Supreme Court. An appellate procedural rule grants that discretion to the district courts.28 In county court cases, a “party may suggest” that a county court certify an order “to be of great public importance.”29 The decision to certify resides completely within the county court’s “absolute discretion,” F.S. §34.017(3) (1984), and a county court may even certify a question on its own motion.30 Rule 9.160 neither includes a subsection authorizing the circuit court to certify an intra-circuit conflicting opinion nor does it authorize a party to request that a circuit court certify a question greatly impacting the public or intra-circuit conflicting opinions.

Significant to uniformity in the law, the legislature permits a county court to certify a question having “statewide application” affecting “the uniform administration of justice.”31 Section 34.017(1)(b), however, does not clarify that a county court judge may certify conflicting intra-circuit appellate opinions. Although no district court of appeal broadly expanded the phrase “uniform administration of justice” within §34.017(1)(b) to clearly authorize a county court to certify intra-circuit conflicting opinions, a district court advised county court judges that §34.017 “can be used to create precedent needed for the orderly administration of justice in their courts,” and that the district court relies upon the county courts “to screen their cases so that the district courts may receive an occasional appeal rather than numerous petitions for certiorari.”32

Stilson v. Allstate Ins. Co., 692 So. 2d 979, 983 (Fla. 2d DCA 1997), suggested that county courts should certify questions impacting the administration of justice but did not clearly expand §34.017’s parameter such that county courts could certify conflicting intra-circuit decisions for district court review.33 Similar to Stilson, the Third District’s initial Blake opinion recognized the county court’s role in certifying a judgment when conflicting circuit appellate decisions provide contrasting guidance.34 However, after granting rehearing, Judge Logue asserted that the “county court’s authority to certify issues of great public importance directly to the district courts of appeal is not adequate.”35

In summary, a circuit court may identify contradictory intra-circuit opinions as eliminating precedential uniformity; however, a circuit court may not certify an intra-circuit conflict to the districts court of appeal or the Florida Supreme Court under §34.017 or Rule 9.160. Consequently, circuit appellate courts may not reconcile their own conflicting precedents.

Conclusion
When circuit appellate judges issue conflicting decisions within the same circuit, the conflicting opinions bind the county courts within that circuit unless a district court of appeal quashes one of the conflict cases on second-tier certiorari review or subsequently articulates relevant precedent in a different case.36 Conflicting appellate opinions issued by circuit judges within the same judicial circuit create non-uniform law directly impacting the county courts’ ability to efficiently adjudicate issues.

Courts have suggested different methods for resolving intra-circuit conflicts. The circuit appellate court in Capital One Bank v. Strand, 14 Fla. L. Weekly Supp. 748b (Fla. 12th Cir. Ct. May 14, 2007), observed that it “would seem to be within the inherent power of the circuit court to conduct a similar [en banc] proceeding to obtain uniformity to guide the county court and litigants.”37 The Fifth District proposed, as a beginning step in solving this problem, that “the supreme court may need to resolve the issue by rule — especially now that jurisdiction of the county courts has been expanded.”38 Judge Logue, on the other hand, stated that this problem can be solved at the district court level, where “a district court has the discretion to issue a writ of certiorari to review an incorrect circuit court appellate decision that expressly and directly conflicts with another circuit court appellate decision in the same district.”39

In Blake, the Third District, recognizing the importance of this issue, certified the following as a question of great public importance:

“[D]oes a district court . . . have jurisdiction to grant a petition for second-tier certiorari in a case in which there is direct conflict on a determinative issue as between (A) the circuit court appellate division case which is the subject of the second-tier petition, and (B) a decision by a different circuit court appellate division panel within the same district, when each of the conflicting decisions was rendered in the absence of a controlling decision by the district court for that district.”

An answer to this certified question would clarify a district court’s authority to resolve intra-circuit conflicting opinions by second-tier certiorari review. However, if the Florida Supreme Court were to remain silent as to the procedure, which circuit appellate courts may use to present their conflicting opinions to the district courts, obtaining review from the district courts would still present a problem if the litigants refused to file a second-tier certiorari petition in the district court. Stated differently, thoroughly resolving the conflicting opinions problem would require a method for circuit appellate courts to certify their own intra-circuit conflicts.

Unresolved conflicting appellate decisions within the same circuit occur because Rule 9.331’s en banc review does not apply to circuit courts. Because too many judges sit on the circuit bench in larger circuits to practically convene en banc review, rather than revise Rule 9.331 such that circuit courts may conduct en banc proceedings, the Florida Supreme Court should amend Rule 9.030(b)(4) to expand the district courts’ jurisdiction to include intra-circuit conflicting appellate opinions. A revised Rule 9.030(b)(4) should not authorize the district courts’ discretion to conclusively settle conflicting circuit opinions. Rather, an amended Rule 9.030(b)(4) should include mandatory verbs such as “must” or “shall.” Mandating that the district courts resolve intra-circuit conflicting opinions, rather than permitting their discretion, will allow district courts to fulfill their duty to resolve conflicting circuit appellate opinions, thus, stabilizing the precedential landscape more efficiently.40

The Florida Supreme Court should also amend Rule 9.160(e) to authorize a circuit appellate court to sua sponte certify intra-circuit conflicting opinions for review by a district court of appeal. Similarly, the Florida Legislature can participate in solving intra-circuit conflicts by revising F.S. §26.012(1) to allow for sua sponte certification.

As Judge Logue correctly observed, “Leaving the outcome of a person’s lawsuit to the predilection of individual judges, rather than to a coherent body of law that applies across the board to other persons filing lawsuits in the same court, constitutes a miscarriage of justice reflecting a departure from the most essential requirements of law: equality before the law.”41 Until resolved, intra-circuit conflicting opinions will continue to obstruct the county courts’ ability to efficiently rule upon pending matters and hinder attorneys from precisely informing their clients regarding potential legal results.


1 Fla. Stat. §26.012(2)(a)-(g) (2004).

2 See Fla. R. App. P. 9.140(b) and (c) (identifying the orders appealable by a defendant and the state of Florida).

3 Fla. R. App. P. 9.030(c)(1)(C).

4 See Fla. Stat. §162.11 (1986) (“An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court.”).

5 See Fla. R. App. P. 9.130(a)(2) (stating that appeals “of non-final orders in criminal cases shall be as prescribed by rule 9.140”).

6 Florida Office of the State Courts Administrator, Overall Statistics at 2-9, available at http://www.flcourts.org/core/fileparse.php/541/urlt/Chapter-2_Overall-Statistics.pdf.

7 Id. at 2-1.

8 State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994) (emphasis added).

9 State Farm Fire & Cas. Co. v. Suncare Physical therapy, Inc., a/a/o Henrisma, 18 Fla. L. Weekly Supp. 776a (Fla. 11th Cir. Ct. July 13, 2011) (citing Lopez, 633 So. 2d at 1150-1151), pet. dis., 3D11-2147 (Fla. 3d DCA Oct. 5, 2011).

10 Though the third district did not vacate Diaz, the Henrisma circuit panel refused to follow Diaz and reasoned that the “decision to deny second-tier certiorari relief” did not require that the Henrisma panel “follow Diaz as precedent.” Henrisma, 18 Fla. L. Weekly Supp. 776a at n. 2.

11 Fla. Stat. §627.736.

12 Nunez, 685 F.3d at 1206, 1208-09.

13 Id. at 1209-10.

14 Id. at 1211.

15 Capital One Bank v. Strand, 14 Fla. L. Weekly Supp. 748b (Fla. 12th Cir. Ct. May 14, 2007).

16 Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Alexia Blake, 23 Fla. L. Weekly Supp. 683a (Fla. 11th Cir. Ct. Dec. 7, 2015), pet. dis., 42 Fla. L. Weekly D2503 (Fla. 3d DCA Nov. 29, 2017).

17 Alexia Blake, 42 Fla. L. Weekly D2503 at *4 (footnote removed).

18 Id. at *5 (emphasis added).

19 Id. at *8.

20 VLX Props., Inc. v. S. States Utilities, Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001).

21 Fla. R. App. P. 9.331(a) (emphasis added).

22 Fla. R. App. P. 9.331 (committee notes, 1982 amend.). See Fla. R. App. P. 9.160 committee notes (1984 amend.) (stating that “section 34.195 refers to the certification of questions in final judgments if the question…affects the uniform administration of justice”).

23 Id.

24 Id. (emphasis added).

25 Id.

26 Lopez, 633 So. 2d at 1151.

27 Strand, 14 Fla. L. Weekly Supp. 748b; United Servs. Auto. Ass’n v. Univ. Chiropractic Ctr., Inc., 20 Fla. L. Weekly Supp. 1152a (Fla. 17th Cir. Ct. Sept. 6, 2013); Gilliam v. State of Florida, 7 Fla. L. Weekly Supp. 666b (Fla. 19th Cir. Ct. May 26, 2000); see also Henrisma, 18 Fla. L. Weekly Supp. 776a.

28 Fla. R. App. P. 9.030(b)(4)(A) and (B). A district court’s authority to review county court orders certifying an issue greatly impacting the public appears in several statutes and procedural rules. See Fla. Stat. §26.012(1) (2004) (removing orders “certified by the county court to the district court of appeal to be of great public importance” from the circuit appellate court’s jurisdiction); Fla. Stat. §34.017(4) (1984) (stating that the district court of appeal “has absolute discretion as to whether to answer a question certified by the county court”); Fla. R. App. P. 9.160(b) (“Any appeal of an order certified by the county court to be of great public importance must be taken to the district court of appeal.”).

29 Fla. R. App. P. 9.160(e)(1).

30 Id.

31 Fla. Stat. §34.017(1)(b) (1984).

32 Stilson v. Allstate Ins. Co., 692 So. 2d 979, 983 (Fla. 2d DCA 1997).

33 The second district predicted that legal evolution in “unreported” circuit appellate decisions “may take conflicting approaches within the numerous circuits”; this dicta relates to the “‘clearly established principles of law’” factor applicable in second-tier certiorari proceedings. Stilson, 692 So. 2d at 982.

34 The majority agreed that the county court “wisely used its power to certify the issue” to the district court “after identifying the conflicting county court and circuit court opinions on the topic.” Allstate Fire and Cas. Ins. Co. v. Hallandale Open MRI, LLC, a/a/o Alexia Blake, 208 So. 3d 741, 743 (Fla. 3d DCA 2016), reh’g granted and opinion withdrawn, 42 Fla. L. Weekly D2503 (Fla. 3d DCA Nov. 29, 2017).

35 Blake, 42 Fla. L. Weekly D2503 at *9 (Logue, J., concurring and dissenting).

36 A district court’s ability to resolve the conflict exists if a party timely invokes the district court’s second-tier certiorari jurisdiction. See Fla. R. App. P. 9.100(c)(1) (stating that a certiorari petition “shall be filed within 30 days of rendition of the order to be reviewed”). If neither party in the intra-circuit conflict cases timely invokes second-tier certiorari jurisdiction, then the district court cannot resolve the intra-circuit conflict by vacating one of the antithetical circuit appellate decisions. For clear precedent, the lower tribunals and bar would need to await a later district court decision, likely involving different parties, in a separate case.

37 Strand, 14 Fla. L. Weekly Supp. at 748b.

38 Lopez, 633 So. 2d at 1151.

39 Blake, 42 Fla. L. Weekly D2503 at *11 (Logue, J., concurring and dissenting).

40 See id. at *5 (stating that “a properly functioning system of appellate courts will necessarily have a method to resolve those conflicts”) (Logue, J., concurring and dissenting).

41 Id. at *9.

J. Sebastien Rogers earned undergraduate degrees at the University of Rochester and a law degree from the University of Miami School of Law. As a staff attorney in the General Counsel’s Office in Miami-Dade County, he works in the civil division and previously served in the appellate and judicial ethics divisions.

This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.

[Revised: 03-27-2018]