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Certiorari Review of Nonfinal Orders: Trying on a Functional Certiorari Wardrobe, Part II

Appellate Practice

Last month, we suggested that the “one-size-fits-all” test used to resolve virtually all petitions for writ of common law certiorari challenging nonfinal orders from trial courts is inadequate and unpredictable.1 We posited that although courts declare that they grant certiorari only when there has been “a departure from the essential requirements of law” resulting in “irreparable injury. . . that cannot be corrected on final appeal,”2 in practice, these words are more flowery rhetoric than functional rationale.

Because the case law that seeks to clarify the meaning of this ambiguous test has only resulted in greater confusion, we proposed that the judiciary should announce a policy-grounded functional restatement of the law applicable to such common law certiorari proceedings and create more specific tests tailored to the more common issues addressed by certiorari. We then proposed a functional test, supported by stated policies,3 for determining whether the exceptional circumstances warranting certiorari review of an erroneous nonfinal order in a pending trial court proceeding exist. In determining whether to grant certiorari, a reviewing court applying our functional approach would consider 1) whether the trial court committed error that can be identified with a high level of confidence from the limited record provided in an original proceeding, and 2) whether the reviewing court can confidently state that the trial court’s error is so detrimental to the goal of providing a fair, consistent, accurate, and even-handed dispute resolution process that it should use its resources to interfere in the trial court proceeding to correct the problem. While our more tailored, functional test may not be as poetic as the existing test, we think it will yield more reliable and fair results. In this article, we leave it to you, the reader, to try on our functional approach and decide whether it fits in the context of two4 controversial types of nonfinal orders: 1) orders denying trial by jury and 2) orders denying discovery.5

Orders Denying Trial by Jury
Assume you represent an elderly female plaintiff who developed AIDS as a result of a surgery during which an HIV-positive doctor accidentally cut himself and bled into the surgical opening. After unsuccessful presuit negotiations, she sues the doctor for malpractice and demands a trial by jury. The trial is expected to last two weeks and will require the testimony of three experts who will travel from out of state to testify. At the pretrial conference, the trial judge denies your client’s request for jury trial, stating that he is too busy dealing with foreclosure cases to take the time to pick a jury.

In deciding how to remedy this clearly erroneous order, you discover that under the one-size-fits-all certiorari test, your client cannot obtain relief. In the controlling case, Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998), the Florida Supreme Court, reasoning that any error in denying a demand for trial by jury does not create “irreparable harm” that cannot be remedied on appeal, held that certiorari review is not available for orders denying jury trial. According to Jaye, the fact that your client is being denied a constitutional right, will have to “show [her] hand” in a preliminary nonjury trial, may die before the reviewing court can order a second trial, and will have to go through “the time, effort, and expense, of trying a case twice” is not irreparable harm.6 Additionally, you don’t understand why Jaye proclaims that certiorari review should not be used to circumvent the rule allowing for only limited interlocutory appeals when there is no such rule to address your client’s jury trial issue.7

But let us take a look at what happens when you apply the authors’ proposed functional approach to certiorari review to your hypothetical client’s circumstances. Under the first prong of the functional test, it is clear to you that in denying your client’s demand for a jury trial, the trial court committed a legal error that the appellate court can identify with a high level of confidence from the limited record provided in a certiorari proceeding because the policies underlying this prong of the functional test support this conclusion. First, you’re certain that this erroneous denial of a demand for jury trial is an error that the reviewing judges in the certiorari proceeding would reverse on direct appeal without debate. Second, because both the federal and state constitutions guarantee the right to a jury trial, you will have no trouble establishing that this error amounts to a violation of due process. Even if this denial does not amount to a due process violation, certiorari review is warranted because the appellate court can adequately address this issue by reversing the order denying jury trial, and the overriding need of both law and society to protect the sanctity of trial by jury legitimates appellate court intervention at this stage of the litigation, particularly when this order is not a tentative nonfinal order that the trial court is likely to revisit. Third, the ruling involves a pure question of law; it does not involve discretion.8 Finally, a denial of trial by jury is regarded as a structural or per se error, which means that an appellate court will not examine the record on direct appeal to determine whether it was harmless.9 Thus, this order is capable of review on certiorari with essentially the same level of accuracy as a direct appeal.

Under the second prong of the functional test, it seems obvious to you that this denial of a jury trial is so detrimental to the goal of providing a fair dispute resolution process that the appellate court should use its resources to interfere in the trial court proceeding. This is even clearer when you examine the policy reasons for appellate involvement in your case. First, the erroneous denial of a jury trial involves a due process violation that will prevent a fair trial. Despite the discussion in Jaye, trial by jury is a constitutional right.10 in fact, deprivation of trial by jury was one of the grievances listed in the Declaration of Independence as grounds for the American Revolution11 because the founders considered the right to a jury trial essential to a fair dispute resolution process.

Second, you know that from the perspective of a cost/benefit analysis, this is an order that the appellate court can correct on certiorari review with a short, simple opinion that will take little time or expense to issue. That appellate cost is likely to save the parties and the trial court considerable expense. In your case, this may be the only way for your client to attend her trial.

In trying on the functional approach, it seems clear to you that this erroneous order involves the type of error and the appropriate circumstances to satisfy the general policies that the authors suggest should be used to determine whether the ruling fits into the small group of orders that should be appropriate for certiorari review. Having satisfied the general policies, what test should the court announce to determine whether orders denying trial by jury can be corrected on certiorari review?

The court could hold that certiorari relief would be granted to require the trial court to grant a party a trial by jury if 1) the petitioner provides an adequate record from which it can be established that he or she is entitled to have a claim resolved by jury trial as a matter of law; 2) the record also demonstrates that the petitioner has taken no action that the trial court could reasonably treat as a waiver of the right to trial by jury; and 3) the respondent provides no record or argument to demonstrate that the trial court has a reasonable basis in law or fact to deny trial by jury.

This carefully tailored test would allow appellate courts to review the question of whether a party is entitled to trial by jury as a matter of law under the usual de novo standard without trying to determine whether it was also a nebulous “clear departure”12 or “miscarriage of justice,”13 as would be required under the existing certiorari test. Additionally, the results would be predictable because the precedent on which lawyers and judges would be required to rely would be limited to the law of certiorari addressing trial by jury. Most importantly, while the one-size-fits-all approach would preclude certiorari relief for those wrongfully denied a trial by jury, this tailored approach would permit the appellate courts to intervene only when the circumstances warrant such intervention. Thus, the appellate court applying this contextual test would almost certainly grant certiorari review in your client’s case.

Orders Denying Discovery
Now assume that your client is sued for negligence by her good friend who happened to be a passenger when your client was involved in a terrible automobile accident. The plaintiff incurred a minor scar on her face as a result of the accident. The plaintiff’s primary damages claim is that her husband left her because of this “disfigurement,” causing her extreme emotional distress. Your client knows that for years the plaintiff has been contemplating leaving her husband to live a life of celibacy as a student of a semi-religious “guru” in Tibet with whom she frequently exchanges email messages. Your client is convinced that the email messages to the Tibetan guru will reveal that she plans to leave her husband, which would disprove the plaintiff’s loss of consortium claim.

You file a request for production of the email messages pursuant to Fla. R. Civ. P. 1.350,14 to which the plaintiff objects. At the hearing, the trial judge makes it clear that because there is no case law on the topic of religious communication, he has decided to treat the sect leader as “clergy,” but he states that he would be willing to certify a question to the appellate court. He then denies your motion to compel discovery on the theory that production would violate the religious communication privilege15 and the plaintiff’s right to privacy.

In researching your options, you discover that the body of law addressing discovery orders is not well developed. You find only 134 reported opinions in Florida even mentioning Rule 1.350,16 and most of these are certiorari proceedings involving trial court orders granting discovery, not denying it.17 Under the current one-size-fits-all test, the appellate courts rarely grant certiorari review of orders denying discovery, reasoning that in most cases the harm can be remedied on direct appeal.18

But your reasonable search turns up only one denial-of-discovery case reversed on direct appeal in the last 10 years.19 You are not surprised, because it seems clear that these errors evade appellate correction. To obtain relief on direct appeal, you will have to prove that the errors you raise on appeal actually harmed your client. If you never obtain the discovery, you can never prove what admissible evidence would have led from the discovery. The denial of discovery creates a proverbial black box, the content of which is unknown and unknowable. Without knowing what is inside the black box, you will never be able to argue in good faith that its content would have made a difference at trial. You recognize, however, that if the appellate courts ruled that denial of discovery errors cannot be rectified on appeal, they would be inundated with certiorari proceedings challenging all varieties of discovery. You surmise that the denial of certiorari review of orders denying discovery is actually a form of appellate case management.

Upon further research, you find hope in a few relatively recent decisions that allow for certiorari review of orders denying discovery under the current three-prong test in very narrow circumstances.20 Although these rulings give lip service to the “departure” test, they actually apply what appears to be a type of functional test. These cases stress that certiorari will be granted to review orders denying discovery only when such an order “effectively eviscerates”21 a party’s claim or defense and when there is “no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.”22 So if your client has no evidence other than the email messages to prove her defense — that her former friend had planned to leave her husband well before the accident — the appellate court may grant certiorari relief in this case. Then again, maybe not. After all, “eviscerate” is a pretty strong word, indicating a pretty high standard.

So under the existing certiorari test, your client may or may not be able to obtain certiorari relief, and the chances of reversal on direct appeal because of this order denying discovery are slim to none. Clearly, the appellate courts will not interfere with trial court discovery orders unless there is a reasonably clear error and their holdings do not invite an avalanche of new certiorari filings. But what happens when you apply the authors’ functional approach to certiorari review?

Under the first prong, establishing that the trial court committed an error that can be identified with a high level of confidence from the limited record on appeal is not as straightforward as it was for your case in which the trial court denied your client a trial by jury. Without a large body of existing case law, establishing that this order denying discovery would be reversed on direct appeal with little debate among appellate judges is not easy. There is simply no way to show a violation of due process or a failure to follow binding precedent. However, one of the policies underlying this prong provides that in the absence of such a showing, the court should grant certiorari if 1) the appellate court can adequately address the issue on the limited record before it; and 2) some overriding need within the law and society legitimates the appellate court’s decision to resolve the issue at this stage of the litigation.

In your client’s case, the hearing transcript is sufficient for the appellate court to evaluate the propriety of denying discovery under these circumstances. Moreover, because of the dearth of case law in the rapidly and technologically evolving area of discovery, there appears to be an overriding need within the law and society that legitimates appellate intervention to resolve this issue. Finally, because the “black box” problem means that this denial of discovery cannot be addressed adequately on direct appeal, appellate intervention at this stage of the proceedings may be warranted.

Passing the second prong of the functional test is more clear-cut. Because the discovery of personal electronic documents, like the plaintiff’s email messages to the Tibetan guru, is a new, hot topic that confuses trial courts and results in different rulings among different divisions, you have no problem demonstrating that the trial court’s error is so detrimental to the fair, consistent, accurate, and even-handed dispute resolution process that the appellate court should interfere in the trial court proceeding to correct the problem. From a policy perspective, orders denying discovery of documents and things that a party reasonably anticipates will lead to relevant, admissible evidence that is not duplicative or collateral may burden the party denied so seriously that the public would perceive the trial court as an illegitimate forum for fair decisionmaking.

Additionally, in certain narrow circumstances, the benefits of appellate intervention to a party in such a discovery matter may outweigh the costs. If, by granting certiorari review of this order denying a legitimate discovery request, your client can prove her defense when she would not be able to do so otherwise, it seems that the procedural costs of certiorari review are outweighed by the judicial system’s interest in fairness.

Thus, under the functional approach, this appears to be a circumstance in which the appellate courts should fashion narrow, context-specific tests for determining whether certiorari review is appropriate. You envision the possibility of two such tests concerning orders denying discovery, one addressing denials of discovery in unique circumstances or emerging areas about which there is little case law, and another addressing denials of discovery where there is law on point, but a party believes the trial court’s denial is in error.

In the first instance, when the trial court makes it clear that it would actually welcome appellate “interference” in a novel discovery matter, as in your client’s case, the appellate courts could grant certiorari relief concerning an order denying discovery if 1) there is no clear law resolving the issue of discovery; and 2) the trial court is willing to certify that the order involves an exceptional discovery issue unresolved by binding authority that warrants certiorari review both to assist in the resolution of the pending case and to create guiding precedent.

This contextual test would allow trial courts to exercise discretion to control discovery while authorizing the appellate courts to address evolving discovery matters, ensuring future consistency. Although the Florida Appellate Rules once allowed trial courts to certify questions to the appellate courts,23 the current rules do not authorize such certification. So unless and until the Florida Supreme Court amends the rules, this sensible contextual test is simply not a feasible avenue to certiorari relief.

When there is relevant precedent and a trial court denies a discovery request, the appellate courts could grant certiorari relief when 1) the petitioner demonstrates to the trial court and to the appellate court that a factual basis exists to predict that there is a substantial probability that the requested discovery will lead to admissible evidence; 2) the evidence will not be merely duplicative, collateral, or only for purposes of impeachment; and 3) the evidence will be at least moderately relevant to a factual issue to be determined by the trier of fact.

Because this tailored test appears to authorize relief only in situations akin to an abuse of discretion, it upholds the necessary exercise of trial court discretion in controlling discovery. It would also require the party seeking discovery in a controversial area to lay the groundwork, perhaps through earlier discovery or affidavits, before a denial of discovery would create an issue the appellate courts would be willing to review. For your client to obtain relief under this test, she may need to articulate precisely why she thinks the plaintiff’s email messages to the Tibetan guru will aid the case. If she can do that, the appellate court applying this contextual test will likely grant certiorari review of the order denying discovery.

In our view, the benefits of this tailored, functional approach to certiorari review are clearly superior to the current one-size-fits-all approach. If the court announces a rule that is too broad or too narrow, it does not create a swinging pendulum for all certiorari proceedings. The misstated holding would affect only the small group of certiorari proceedings addressing trial by jury or denials of discovery. If the rule announced is too broad, it does not result in an influx of thousands of petitions for certiorari relating to other issues. The judiciary could incrementally modify the contextual rules over time and experience without causing dramatic shifts in the law of certiorari and without creating false hopes or confusion among lawyers. We believe that the contextual rules are easier to evaluate, which should make it easier for lawyers to decide whether to file the petition and easier for appellate judges and their staff to resolve the petition.

Admittedly, we have attempted to create certiorari tests tailored to only two types of nonfinal orders. We recognize that replacing the existing one-size-fits-all test would require a walk-in closet with a larger certiorari wardrobe. Although altering certiorari review to fit particular types of nonfinal orders would require an initial investment of time and effort on the part of attorneys and appellate judges, we think the fairer, more accurate, and more even-handed results would be worth it.

1 Chris W. Altenbernd & Jamie Marcario, Certiorari Review of Nonfinal Orders: Does One Size Really Fit All?, 86
Fla. B.J. 21 (Feb. 2012).

2 Sultan v. Earing-Doud, 852 So. 2d 313, 315 (Fla. 4th D.C.A. 2003).

3 the policies underlying each prong of our proposed functional test are listed in the previous article. See Altenbernd & Marcario, note 1.

4 originally, we examined a third type: orders granting or denying disqualification of a party’s attorney. Our research indicated that in such cases the district courts may refer to the existing three-prong test, but their review is closer to de novo. See, e.g., Frye v. Ironstone Bank, 69 So. 3d 1046 (Fla. 2d D.C.A. 2011); Cont’l Cas. Co. v. Przewoznik, 55 So. 3d 690 (Fla. 3d D.C.A. 2011); Health Care & Ret. Corp. of Am., Inc. v. Bradley, 944 So. 2d 508 (Fla. 4th D.C.A. 2006). Accordingly, we suggest that these orders ought to be reviewable by nonfinal appeal under
Fla. R. App. P. 9.130.

5 We confess that we did not select our test subjects randomly. The commentators list at least a dozen common issues that are appropriate for certiorari review and an equal number of issues that are not. See Raymond T. Elligett & John M. Scheb, Florida Appellate Practice and Advocacy 169-75 (6th ed. 2011);
Valeria Hendricks, Florida Appellate Practice §19.4 (5th ed. 2003). We have selected two that can be addressed in a short article and that seem to represent a reasonable cross-section of the more controversial issues discussed in certiorari case law.

6 Jaye, 720 So. 2d at 215. In Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d D.C.A. 1995), Judge Altenbernd authored an opinion with a similar outcome. That case was somewhat context-specific and suggested that a clear violation of a constitutional right to trial by jury could still be corrected by mandamus. Id. at 649. Since Jaye, the authors are unaware of any case in which mandamus has been used to quash an order denying trial by jury.

7 Jaye, 720 So. 2d at 214-15;
Fla. R. App. P. 9.130(a). The Florida Constitution gives the Supreme Court the right to decide which nonfinal orders can be challenged by interlocutory appeal.
Fla. Const. art. V, §2(a). It also gives the district courts jurisdiction over original certiorari proceedings.
Fla. Const. art. V, §5(b). Whether certiorari relief should be restricted because the Supreme Court can create alternative relief by interlocutory appeal or whether nonfinal appeals should be limited because of the availability of certiorari relief is a topic worthy of its own article.

8 See, e.g., Tampa HCP, LLC v. Bachor, 72 So. 3d 323 (Fla. 2d D.C.A. 2011) (holding that the trial court erred as a matter of law in concluding that the plaintiff did not waive her constitutional right to jury trial by agreement); Gen. Impact Glass & Windows Corp. v. Rollac Shutter of Tex., 8 So. 3d 1165 (Fla. 3d D.C.A. 2009) (holding that the trial court erred as a matter of law in finding that a valid arbitration agreement existed between the parties when the defendant presented no evidence that the plaintiff waived its right to jury trial).

9 See Johnson v. State, 994 So. 2d 960 (Fla. 2008).

10 U. S. Const. art. III, §2; U.S.
Const. amend. VII;
Fla. Const. art. I, §22.

11 Declaration of Independence para. 20 (U.S. 1776).

12 Sarasota-Manatee Airport Auth. v. Alderman, 238 So. 2d 678, 679 (Fla. 2d D.C.A. 1970).

13 Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, J., concurring).

14 Rule 1.350 addresses production of documents and things.

15 See Fla. Evidence Code §90.505.

16 contrast, there are more than 755 cases discussing
Fla. Stat. §768.28, which is a newer statute applicable only to civil cases against a governmental entity.

17 See, e.g., State Farm Fla. Ins. Co. v. Kramer, 41 So. 3d 313 (Fla. 4th D.C.A. 2010); Parker v. James, 997 So. 2d 1225 (Fla. 2d D.C.A. 2008); Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So. 2d 445 (Fla. 2d D.C.A. 2002).

18 See Sjuts v. State, 754 So. 2d 781, 783 (Fla. 2d D.C.A. 2000); Am. So. Co. v. Tinter, Inc., 565 So. 2d 891, 893 (Fla. 3d D.C.A. 1990); Indus. Tractor Co. v. Bartlett, 454 So. 2d 1067, 1067 (Fla. 5th D.C.A. 1984).

19 Behm v. Cape Lumber Co., 834 So. 2d 285 (Fla. 2d D.C.A. 2002).

20 Acevedo v. Doctors Hosp., Inc., 68 So. 3d 949 (Fla. 3d D.C.A. 2011); Anderson v. Vander Meiden, 56 So. 3d 830 (Fla. 2d D.C.A. 2011); Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232 (Fla. 2d D.C.A. 2009); Kaye Scholer LLP v. Zalis, 878 So. 2d 447 (Fla. 3d D.C.A. 2004); Office of the Attorney Gen., Dep’t of Legal Affairs, State of Fla. v. Millennium Commc’ns & Fulfillment, Inc., 800 So. 2d 255 (Fla. 3d D.C.A. 2001).

21 Giacalone, 8 So. 3d at 1234.

22 Anderson, 56 So. 3d at 832 (quoting Giacalone, 8 So. 3d at 1234-35)).

23 Fla. R. App. P. 4.6 (1962 amendment).

Judge Chris W. Altenbernd is a judge on the Second District Court of Appeal, where he has served for 23 years.

Jamie Marcario is employed as a staff attorney to Judge Chris Altenbernd. She graduated magna cum laude from Stetson University College of Law in December 2010. Before attending law school, she served as the director of editorial services for PricewaterhouseCoopers.

This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Kristi Rothell, assistant editors.

Appellate Practice