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Florida Bar Journal

Oh No! Not a Per Curiam Affirmed Decision on My Appeal

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Illustration of gavel and checkered flag

Illustration by Barbara Kelley

A modest epiphany suggested that the instant article may be somewhat like the late 1980s-1990s TV show Seinfeld.[1] As much as the author may be constrained otherwise, this article may also be about nothing. As avid fans may recall, Seinfeld was implicitly deemed to be a show about nothing by one of the show’s four main characters — George Costanza. Despite the “nothing” moniker, the iconic TV show enlightened viewers for nine years (1989-1998).[2] An appellate court per curiam affirmed decision (PCA), meaning without a written opinion,[3] is an essential appellate practice primarily utilized by Florida’s five district courts of appeal (DCA). PCAs are vital to Florida’s ever-burgeoning common-law jurisprudence and, thus, have staying power much like Seinfeld had staying power, back in the day.

The DCA Grounds for A PCA Decision

Not surprisingly, some appellate counsel for appellant(s) have found it downright exasperating that an appellate court would render a PCA decision upon their client’s allegedly meritorious appeal.[4] Although not frequently invoked, that the Florida Rules of Appellate Procedure expressly provide for summary affirmances of trial court orders even before an appellate answer brief is filed seems to be a rule disregarded or ignored by numerous appellants’ counsel.[5] By Florida Supreme Court-adopted appellate rule, because a summary affirmance may be reached before an appeal has been fully briefed, a fortiori, a summary affirmance may undeniably be rendered upon full appellate briefing. Moreover, 25 years ago, the Fourth DCA informed the Elliott family litigants, their attorneys, the Florida judiciary, and The Florida Bar that “it is fundamental black letter law” that a PCA “disposition affirming a trial court order without a written opinion, occurs when the points of law raised are so well settled that a further writing would serve no useful purpose.”[6] “The sheer volume of appeals, in and of itself, would…indicate the impossibility of a written opinion on every affirmance.”[7] Relying on the opinion authored by the late appellate DCA Judge John S. Rawls in Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA 1970), the appellate district court in Elliott v. Elliott, 648 So. 2d 137 (Fla. 4th DCA 1994), further provided that the “[c]ourt and not the attorney for the losing party is charged with the responsibility of deciding which cases merit and warrant a full written opinion upon the basis of that opinion’s contribution to the jurisprudence of this [s]tate”…and, moreover, the Court “has not overlooked or failed to consider the jurisprudence of this [s]tate in deciding a case without a written opinion.”[8]

Likewise, more than 35 years ago, the First DCA upon a motion for rehearing following a PCA, the appellate court consumed additional limited judicial time to explain why counsel cannot reasonably expect a written opinion from the court in all affirmances of lower tribunal orders and judgments.[9]

We recognize that if we decide a case without writing an opinion, the losing party will be unable to obtain further review in the supreme court. Therefore, we endeavor to write opinions in all cases in which we believe that our decision can arguably be in conflict with a prior decision of the supreme court or a district court of appeal. To be ever faithful to this practice, there have been cases in which we first decided a case without opinion but, upon rehearing, determined to write an opinion in order to distinguish the cases relied on by the losing party. See, e.g., Fortman v. Freedom Fed. Sav. & Loan Assoc., 403 So. 2d 985 (Fla. 2d DCA 1981), petition for review denied, 402 So. 2d 609 (Fla. 1981). In Fortman we wrote because we felt the cited cases were close enough on point that the losing party could make a legitimate argument to the supreme court that we had improperly distinguished them from the case at hand. The fact remains, however, that most of the cases cited by zealous advocates as being in direct conflict with our PCA decisions are simply not close enough to write about. Appellant correctly observes that the decision of whether to write an opinion rests with the assigned panel of three judges. However, he does this court an injustice by saying that such decision is made “[u]pon the whim, or caprice” of the assigned judge or panel. He characterizes this procedure as “arbitrary, capricious, and irrational.”[10]

Of course, each appeal is assigned to a panel of three appellate district court judges before being disposed of on the merits.[11] The appellate district court in Whipple v. State, 431 So. 2d 1011 (Fla. 1st DCA 1983) (per curiam), further acknowledged that the DCA writes opinions in all reversals, remands, and in affirmances in which the appellate court believes a written opinion will make a substantial contribution to the law, or where necessary to disclose conflict or certify questions.[12] If it were not permissible to issue a PCA, the processing of appeals would be materially delayed.[13] The Whipple court concluded by urging appellate counsel to carefully consider the appropriateness of filing a motion for rehearing,[14] particularly upon receipt of a PCA that just may lead to an order to show cause why sanctions should not be imposed.[15]

More than 50 years ago, the Third DCA also provided an insightful explanation for the issuance of PCA decisions.

Omitting opinions in a minority of affirmances is customary with appellate courts. It is a useful, if not essential practice of a busy appellate court such as this, where the judges each are faced with a need to write more than [100] opinions annually. Thus, opinions generally are dispensed with upon affirming cases which do not involve new or unusual points of law, or which turn on facts to which established rules of law are applicable, or where a full or adequate opinion has been supplied by the trial judge; and where the writing of an opinion would be without useful purpose, serving only to satisfy the parties that the court adverted to the issues and gave them attention, and to add needlessly to an already excessive volume of opinions.[16]

Thus, Florida’s appellate district courts have expressly provided multiple grounds for rendering the ubiquitous PCA; to wit: 1) the sheer plethora or volume of appeals; 2) the lack of a substantial contribution to Florida’s common law jurisprudence; 3) the lack of novel issues raised on the appeal; 4) the lack of a useful purpose for a written opinion; 5) where well established rules of law are applicable; and 6) where a full or adequate written opinion has been supplied by the trial judge.[17] Objectively considered, such grounds may not be deemed unreasonable.

Post-PCA Review or a Written Opinion

The Florida Supreme Court has made clear that while a party on appeal may submit a request for a written opinion to a district court of appeal, the DCA retains the inherent discretion to issue a written opinion when, in its reasoned judgment, a written opinion is required.[18] Significantly, the Florida Supreme Court lacks jurisdiction to review a PCA.[19] Although rarely exercised, the U.S. Supreme Court may review a PCA rendered by a Florida district court of appeal[20] as well as by the Florida Supreme Court.[21] Notably, the Florida Supreme Court may review a PCA with a citation to a case that is pending review at the Supreme Court.[22] The Florida Supreme Court also lacks jurisdiction to review a PCA that contains nothing more than mere case citations to cases not pending review before the Supreme Court.[23] Indeed, the Florida Supreme Court has expressly provided that:

based on our case law since Jenkins, it is clear that we have explicitly held that this [c]ourt lacks discretionary review jurisdiction over the following four types of cases: (1) a per curiam affirmance rendered without written opinionsee Jenkins, 385 So. 2d at 1359; (2) a per curiam affirmance with a citation to (i) a case not pending review or a case that has not been quashed or reversed by this [c]ourt, (ii) a rule of procedure, or (iii) a statute-see Dodi Publishing, 385 So. 2d at 1369, and Jollie, 405 So. 2d at 421; (3) a per curiam or other unelaborated denial of relief rendered without written opinion-see Stallworth, 827 So. 2d at 978; and (4) a per curiam or other unelaborated denial of relief with a citation to (i) a case not pending review or a case that has not been quashed or reversed by this [c]ourt, (ii) a rule of procedure, or (iii) a statute-see Gandy, 846 So. 2d at 1144.[24]

It should further be recognized that there is no automatic or fundamental right for a party to obtain a written opinion on appeal when requested.[25] Accordingly, when appellate practitioners enter the Florida appellate arena,[26] the learned practitioner, particularly on behalf of the appellant, must be willing to accept that an appellate court may render a PCA decision on their client’s appeal.

On occasion, however, a cordial, respectful request for a written opinion is granted by the appellate court, even if the ultimate affirmed decision on appeal remains unchanged.[27] Florida appellate district courts have also been recognized for having sua sponte withdrawn a PCA and rendered a written opinion.[28] While the majority of occasions in which the appellate courts change their judicial minds to render a written opinion occurs within the typically more complex criminal appellate context, the same occurs from time to time on civil appeals.[29] It should further be recognized that the purpose of a motion for written opinion is to provide a basis for review by the Florida Supreme Court, not to impose upon or require the appellate DCA to explain itself[30] and, once an appellate decision is withdrawn, that decision has absolutely no precedential value.[31]

A Florida PCA Possesses Certain Limited Attributes

Unlike a written, detailed, elaborated, explanatory appellate decision, a PCA has no precedential value and should not be relied on for anything other than res judicata.[32] A PCA also “does not constitute authority for any proposition.”[33] Interestingly, a PCA is not even precedent in the district court that rendered the decision.[34] A PCA with no reasons or authorities given and, although this may be sufficient to support a plea of res judicata[35] as between the original parties or their privies, such 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.[36] A PCA, even one with a written dissent, has no precedential value and should not be relied on for anything other than res judicata,[37] since a dissenting opinion has no precedential value.[38] Given the four elements necessary to demonstrate that a subsequently filed action is res judicata,[39] a subsequent appellate court would necessarily have to look behind the PCA and examine the briefs filed on the appeal to make that res judicata determination.

Notably, a PCA may also establish the law of the case.[40] “The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.”[41] However, a PCA should not be cited, particularly in appellate briefs, because it lacks precedential authority and it is impossible to state the proposition of law for which the PCA is cited as authority.[42] It has also been held that a PCA does not thwart the right of access to the courts because the Florida Constitution’s guarantee of a right to appellate review does not extend to Supreme Court review.[43] Likewise, it is improper to cite to a PCA at appellate oral argument.[44] A PCA also does not bind the appellate court in another case to accept the conclusion of law on which the decision of the lower court was based.[45] A PCA is also not an indication that the case was not considered on the merits because each and every appeal receives the same degree of attention.[46] There seems to be little doubt that a high-profile appellate proceeding may garner a modicum more appellate scrutiny but,[47] ultimately, the reviewing court always seeks to make the right decision for the benefit of all those concerned,[48] regardless of the notoriety of the particular appeal.[49]

Nearly 50 years ago, the late appellate First DCA Judge Rawls provided a most insightful appellate decision that explained Florida’s appellate court structure, which expressly provided in relevant material part:

Appellants’ learned counsel apparently is traveling upon a misconception as to the scope of appellate jurisprudence in this [s]tate. The respective [d]istrict [c]ourts of [a]ppeal in the [s]tate of Florida are courts of final appellate jurisdiction except for a narrow classification of cases made reviewable by the Supreme Court. Article V, Section 5(3), Constitution of the State of Florida, F.S.A. These courts were not established by the people of Florida as intermediate appellate courts or “way stations” to the Supreme Court of Florida. Each of the some [800] cases reviewed by this [c]ourt in each calendar year does not require a full written opinion in the disposition of same. This [c]ourt and not the attorney for the losing party is charged with the responsibility of deciding which cases merit and warrant a full written opinion upon the basis of that opinion’s contribution to the jurisprudence of this [s]tate and those cases of great public interest. This [c]ourt is not now denying and has not denied appellants herein any constitutional right and has not overlooked or failed to consider the jurisprudence of this [s]tate in ruling upon the merits of the appeal.[50] Appellants are not entitled as a matter of constitutional right to a written opinion from this [c]ourt in order that they might petition for writ of certiorari….One party in a lawsuit must, as a general rule, be a losing party. We adhere to our per curiam affirmance of the trial court’s order directing a verdict and final judgment rendered thereon for appellee-defendant Knight.[51]

Perhaps, that may be a common misconception held by the general public[52] and some Florida appellate practitioners, alike, that may not have yet recognized that the five Florida district courts of appeal, generally, are courts of last resort[53] except for a narrow classification of particular cases, including those certified to the Florida Supreme Court as being of great public importance and certified conflict cases wherein multiple district court decisions conflict on points of law that necessitate Supreme Court resolution.[54] The late Florida appellate First DCA Judge Rawls seems to have had an enduring effect on appellate PCA common law jurisprudence.[55]

Conclusion Upon That Profound PCA Disappointment

The legal import and effect of Florida appellate PCA decisions has long been established under Florida common law jurisprudence. Given the sheer volume of appeals throughout the Florida state court system, PCA decisions are both essential and necessary to enable the appellate courts to keep up with their burgeoning workload.[56] The large volume of appeals is simply a fact of appellate life in Florida. Litigants, particularly Florida appellate practitioners who represent appellants on appeal, simply must recognize that appellant’s counsel may just be the recipient of the ubiquitous PCA if for no other reason than the points of law raised are so well settled that a further writing would serve no useful purpose,[57] and while this article may seemingly have been about nothing, a PCA may lawfully establish that a subsequent action is res judicata and also may establish the law of the case.[58] Therefore, a PCA may actually be about something, much like Seinfeld, and, hopefully, so is the instant article by sharing the appellate nuances of the ubiquitous yet infamous PCA.

At the same time, Florida appellate practitioners should carefully consider whether to file a motion for rehearing following receipt of a PCA as well as whether to request a written opinion.[59] Appellate practice experience, at least over the past century, has demonstrated that motions for rehearing following receipt of a PCA are most often denied.[60] Prudence should be diligently exercised before filing a motion for rehearing because it is extremely challenging to inform the appellate court, as the applicable Florida appellate rule requires, to state with particularity the points of law or fact that, in the opinion of the movant, the appellate court has overlooked or misapprehended in its decision.[61] In fact, it has been held meritless to argue that a PCA conflicts with another district court opinion because a PCA only contains the one word “affirmed” without any further explanation or rationale for the appellate court’s unanimous by the court or PCA decision.[62] Florida appellate practitioners should also remain aware that a motion for rehearing following a PCA should be the rare exception and, if prepared for filing,[63] should be written with a modicum of respect for the appellate court while delicately navigating or traversing the narrowly prescribed requirement to merely point out or identify, without argument, the points of fact or law the appellate court may have overlooked or misapprehended.[64] Notably, it has been held more than once that “the motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.”[65]

It would further be wise to keep in mind that filing a motion for rehearing following receipt of a PCA may not be a riskless undertaking.[66] Upon receipt of that PCA, appellant’s counsel should proceed cautiously and always remember that a Florida attorney’s obligations to the Florida courts, as officers of the court, outweigh an attorney’s duty and obligation to zealously represent one’s client.[67] The Las Vegas-like roll-of-the-dice chances are such that not filing that motion for rehearing, essentially, in the blank, stoic face of that one-word appellate PCA decision may be the most prudent alternative. Indeed, there comes a point in every case that the losing party must accept the fact that the case is over and he or she or the company did not prevail.[68]

Conversely, if you are the appellate practitioner who represents the appellee in defense of an appeal, receipt of a PCA could not bring more joy, because the appeal is over and the possibility for further appellate review has essentially been extinguished.[69] Accordingly, receipt of a PCA by appellee’s appellate counsel is the sine qua non of appellate success. As with most earthly challenges necessarily embraced within the human experience, one party must prevail on appeal, and the losing party appellant must begrudgingly tolerate the shocking loss without a scintilla of an explanation.[70]

[1] Seinfeld,

[2] Id.

[3] Stallworth v. Moore, 827 So. 2d 974, 977 (Fla. 2002) (“The decision of the district court at issue in Jenkins was a majority opinion which read in its entirety ‘Per Curiam Affirmed,’ known in common parlance both then and now as a ‘PCA.’”); McDonnell v. Sanford Airport Auth., 200 So. 3d 83, 85 (Fla. 5th DCA 2015) (en banc) (providing, in relevant part, “there may be instances where motions for rehearing are appropriate after the issuance of what is commonly referred to as a PCA…”).

[4] Patton v. State, 597 So. 2d 302, 303 (Fla. 2d DCA 1991) (per curiam) (“We also understand that human emotions occasionally cause such motions to be written with stronger rhetoric than is truly necessary or effective. In this case, however, there is no basis whatsoever to suggest that the motion was filed in good faith. The record as a whole in this case suggests that Mr. McInnis failed to provide both his client and this court with the obligations of professionalism contemplated by the Florida Rules of Professional Conduct.”); Elliott v. Elliott, 648 So. 2d 137, 138 (Fla. 4th DCA 1994) (“Appellant’s counsel proceeded to explain what prompted his argumentative and overzealous motion for rehearing, namely, the fact that the court’s opinion was a simple per curiam affirmance of the trial court’s [f]inal [j]udgment, and the undersigned attorney found it impossible to discern the [c]ourt’s reasoning.”); see note 11.

[5] Fla. R. App. P. 9.315(a) (“After service of the initial brief in appeals under rule 9.110, 9.130, or 9.140, or after service of the answer brief if a cross appeal has been filed, the court may summarily affirm the order to be reviewed if the court finds that no preliminary basis for reversal has been demonstrated.”); Spencer v. Florida Power Light/Broadspire, 141 So. 3d 203, 203 (Fla. 1st DCA 2013) (per curiam) (“Under rule 9.315(a), summary affirmance is appropriate where the initial brief fails to present a ‘preliminary basis for reversal,’ regardless of the good-faith intentions of the filing party.”).

[6] Elliott, 648 So. 2d at 138.

[7] Id.

[8] Id. at 139.

[9] Whipple v. State, 431 So. 2d 1011, 1012 (Fla. 1st DCA 1983) (per curiam).

[10] Id. at 1015.

[11] See Fla. Const. art. V, §4(a) (“Three judges shall consider each case and the concurrence of two shall be necessary to a decision.”); see also Whipple, 431 So. 2d at 1015; Fla. R. Jud. Admin. 2.210(a)(1), 2.210(e).See also note 50.

[12] Whipple v. State, 431 So. 2d at 1015-16.

[13] Id. at 1016; see also Fla. R. Jud. Admin. 2.250(a)(2) (“The following time standards are hereby established as a presumptively reasonable time period for the completion of cases in the…appellate courts of this state.…Rendering a decision — within 180 days of either oral argument or the submission of the case to the court panel for a decision without oral argument.”). Given the 70 days an appellant has to serve its initial brief for appeals of final judgments and the very common motion for extension of time to serve and file a brief on appeal, it is not unusual for an appeal to consume between nine and12 months or more from the date the notice of appeal is filed until a decision is rendered by an appellate panel.

[14] Whipple, 431 So. 2d at 1016.

[15] McDonnell v. Sanford Airport Auth., 200 So. 3d 83, 84-86 (Fla. 5th DCA 2015) (en banc) (“Accordingly, because of [a]ppellants’ counsel’s flagrant abuse of the Florida Rules of Appellate Procedure, and because we find said motion to be both meritless and insulting, we order, pursuant to Florida Rule of Appellate Procedure 9.410(a), said counsel, Frederic Stanley, Jr., Esquire, to show cause in writing, within 20 days from the date we issue this opinion, why monetary or other sanctions should not be imposed for having filed a Motion for Rehearing in violation of Florida Rule of Appellate Procedure 9.330(a).”).

[16] Foley v. Weaver Drugs, Inc., 172 So. 2d 907, 908 n.2 (Fla. 3d DCA 1965), approved, Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 224 & 229 (Fla. 1965) (emphasis in original) (“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”).

[17] See notes 6, 7, 8, 10, 13, 18.

[18] R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986, 989 (Fla. 2004) (per curiam); see also Sylvia H. Walbott, E. Kelly Bittick, Jr., To Err is Human, But the Tipsy Coachman Rule Can Get the Trial Judge Home, 92 Fla. B. J. 8, 77 (2018) (“After all, the appellate court always has the option of the ubiquitous PCA”).

[19] R.J. Reynolds Tobacco Co., 882 So. 2d at 989-90; Beaty v. State, 684 So. 2d 206, 207 (Fla. 2d DCA 1996) (citing Fla. Const. art. V, §3(b); Fla. R. App. P. 9.030(a)Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)) (“Although Mr. Beaty could file papers in the Florida Supreme Court, the constitution gives that court no appeal jurisdiction or discretionary jurisdiction to review this court’s per curiam affirmance of Mr. Beaty’s judgment and sentence because it was rendered without a written opinion.”); Grate v. State, 750 So. 2d 625, 626 (Fla. 1999) (“Regardless of how a petition seeking review of a district court decision is styled, this [c]ourt does not have jurisdiction to review per curiam decisions rendered without opinion and this [c]ourt’s holding in Jenkins cannot be circumvented simply by seeking relief by filing an extraordinary writ petition.”); see also Persaud v. State, 838 So. 2d 529, 533 (Fla. 2003) (“The reasoning and holding in Grate, even though specifically applicable to extraordinary writ petitions seeking review of district court per curiam affirmances issued without written opinion, applies with equal force to extraordinary writ petitions seeking review of per curiam decisions from the district courts of appeal that merely cite to a case not pending on review in this [c]ourt, or to a statute or rule of procedure. We therefore apply the reasoning in Grate to citation per curiam affirmances and specifically hold that this [c]ourt’s extraordinary writ jurisdiction may not be used to seek review of per curiam decisions of the district courts of appeal.”).See notes 23, 24.

[20] Davis v. State, 953 So. 2d 612, 614 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (“Mr. Davis attempted to have the United States Supreme Court review our affirmance. That court does have the power, by writ of certiorari, to review a decision from a Florida district court of appeal even when no written opinion is issued. That power is very rarely exercised.”).

[21] See, e.g., Gideon v. Wainwright, 372 U.S. 335, 337 (1963) (“Treating the petition for habeas corpus as properly before it, the [Florida] State Supreme Court, upon consideration thereof but without an opinion, denied all relief.”), rev’g, Gideon v. Cochran, 135 So. 2d 746 (Fla. 1961) (“[h]abeas corpus denied without opinion”).

[22] De La Hoz v. Crews, 123 So. 3d 101, 104 n.5 (Fla. 3d DCA 2013) (“De la Hoz was unable to petition the Florida Supreme Court for review because that court does not use conflict jurisdiction to review a per curiam affirmance unsupported by written opinion. It could, however, review a per curiam affirmance with a citation to a case that is pending on review.”).

[23] Wells v. State, 132 So. 3d 1110, 1112-13 (Fla. 2014).

[24] Id. at 1113; Gandy v. State, 846 So. 2d 1141 (Fla. 2003).

[25] Kenyon, 882 So. 2d at 990; Davis v. State, 982 So. 2d 1246, 1248 (Fla. 5th DCA 2008) (“On a number of occasions our Supreme Court has indicated that there is no fundamental right to an appellate opinion.”) (citing R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986 (Fla. 2004)Sch. Bd. of Pinellas County v. Dist. Court of Appeal, 467 So. 2d 985 (Fla. 1985)).

[26] Elliott, 648 So. 2d at 139 (“It is not the court’s intention to discourage the good faith filing of motions for rehearing and it is hoped that this opinion will be instructive to new as well as seasoned counsel, who may find themselves in the appellate arena — and on the losing side.”).

[27] Wilson v. State, 191 So. 3d 537, 538 (Fla. 1st DCA 2016) (“Following our per curiam affirmance of [a]ppellant’s convictions and sentences for first-degree murder and robbery while armed with a firearm, [a]ppellant, Kenneth Arthur Wilson, filed a motion pursuant to rule 9.330(a), Florida Rules of Appellant Procedure, requesting a written opinion. We grant the motion, withdraw our previous per curiam affirmance, and substitute the following opinion which also affirms.”); McCloud v. State, 53 So. 3d 1206, 1207 (Fla. 5th DCA 2011) (per curiam) (“We grant Stanley McCloud’s motion for rehearing and for written opinion, withdraw our previous per curiam affirmance dated December 14, 2010, and substitute the following opinion in its place.”) (affirming with only two case citations), quashed, McCloud v. State, 137 So. 3d 1021 (Fla. 2014); Viera v. State, 218 So. 3d 511, 511 (Fla. 3d DCA 2017) (per curiam) (“We deny the appellant’s motion for rehearing, but grant his motion for written opinion, withdraw our per curiam affirmance issued on April 26, 2017, and substitute the following opinion in its place.”); Ejak v. State, 201 So. 3d 1228, 1229 (Fla. 2d DCA 2016) (“Appellant’s motion for rehearing, written opinion and/or certification is granted to the extent that we substitute the following opinion for the per curiam affirmance issued April 29, 2016.”), quashed, Ejak v. State, 2017 WL 2705748, No. SC16-2061 (Fla. June 23, 2017); Rutherford v. State, 939 So. 2d 328, 328 (Fla. 4th DCA 2006) (“We deny Rutherford’s motions for rehearing and certification, but replace the previously entered per curiam affirmance with a written opinion.”).

[28] Williams v. State, 2018 WL 1870518, No. SC16-2170, at *2 (Fla. Apr. 19, 2018) (“On direct appeal to the Second District Court of Appeal, the district court first issued a per curiam affirmance (PCA). Then, after the court denied Williams’ motion to stay mandate and motion for reconsideration, on its own motion the court withdrew the PCA and substituted a written opinion.”).

[29] See notes 27, 28; DeRosa v. Tunnel, 989 So. 2d 1206, 1207 (Fla. 4th DCA 2008) (per curiam) (“We grant appellant’s motion for a written opinion and consequently withdraw our per curiam affirmance entered December 5, 2007.”); Solonenko v. Georgia Notes 18, LLC, 182 So. 3d 876, 877 (Fla. 4th DCA 2016) (per curiam) (“We grant appellants’ request for a written opinion, withdraw our previously issued per curiam affirmance, and substitute the following opinion in its place. We affirm the final judgment of foreclosure and write solely to explain our conclusion that there were no genuine issues of material fact regarding appellants’ statute of limitations defense.”); In re F.J.G.M., 196 So. 3d 534, 536 (Fla. 3d DCA 2016) (“Upon F.J.G.M.’s motion for rehearing and request for a written opinion, we deny F.J.G.M.’s motion for rehearing. We, however, grant F.J.G.M.’s request for a written opinion; withdraw this [c]ourt’s August 12, 2015 per curiam opinion citing to In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015), and In re B.Y.G.M., 176 So. 3d 290 (Fla. 3d DCA 2015), and affirming the trial court’s order denying F.J.G.M.’s private dependency petition; and issue the following opinion in its stead.”); Meilleur v. HSBC Bank USA, N.A., 194 So. 3d 512, 513 (Fla. 4th DCA 2016) (per curiam) (“We grant the appellant’s motion for clarification by way of a written opinion, deny the motion for rehearing en banc, withdraw our prior per curiam affirmance, and substitute the following opinion in its place.”); Fernandez v. Florida Nat’l College, Inc., 925 So. 2d 1096, 1098 (Fla. 3d DCA 2006) (“We grant the appellants’ request to issue written opinion, withdraw our per curiam affirmance filed on September 14, 2005, and substitute the following in its place.”); Fortman v. Freedom Fed. Sav. & Loan Assoc., 403 So. 2d 985, 986 (Fla. 2d DCA 1981) (per curiam) (“On motion for rehearing, appellants earnestly contend that our decision is in direct conflict with Teasley v. Blankenberg, 298 So. 2d 431 (Fla. 4th DCA 1974). Because the two cases have many similarities, we have decided to write this opinion in order to explain why we believe Teasley to be inapplicable.”), rev. denied, 402 So. 2d 609 (Fla. 1981); Geiger v. Mather of Lakeland, Inc., 217 So. 2d 897, 898 (Fla. 4th DCA 1968) (“On petition for rehearing this matter was reconsidered and although we deny the petition and adhere to our decision to affirm the judgment for defendants, we are persuaded to publish an opinion.”); Smith v. DeParry, 86 So. 3d 1228, 1230 (Fla. 2d DCA 2012) (“Upon consideration of the [a]ppellants’ motion for rehearing and for issuance of a written opinion filed December 27, 2011, it is ORDERED that the [a]ppellants’ motion is granted in part and denied in part. This court’s opinion dated December 9, 2011, is withdrawn, and the attached opinion is substituted therefor.”); Christiana Trust v. Rushlow, 231 So. 3d 558, 558 (Fla. 4th DCA 2017) (“We grant the appellant’s motions for rehearing and clarification filed on June 26, 2017, vacate our previous order denying appellant’s ‘alternative motions for rehearing, for a written opinion, or for rehearing en banc,’ vacate the per curiam affirmance without opinion issued March 20, 2017, and substitute the following opinion.”) (reversing and remanding).

[30] Heady v. State, 215 So. 3d 164, 167 (Fla. 1st DCA 2017) (Winokur, J., concurring, in part, dissenting, in part).

[31] Hansen v. City of Deland, 32 So. 3d 654, 656 n.1 (Fla. 5th DCA 2010) (“We note that the landowners also extensively argue their position in reliance on an opinion of this court which was withdrawn and replaced by an en banc decision. See VLX Properties, Inc. v. Southern States Utilities, Inc., 25 FLW D1745 (Fla. 5th DCA July 21, 2000), withdrawn, 792 So. 2d 504 (Fla. 5th DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002). Such reliance was misplaced because an opinion withdrawn by this court is of no precedential value and, as such, it is improper to cite it as precedent.”); Houck v. Dade County, 97 So. 2d 272, 273 (Fla. 1957) (“For the foregoing reasons our opinion filed September 18, 1957, is hereby withdrawn, held for nought and shall not be considered as a precedent.”).

[32] State v. Swartz, 734 So. 2d 448, 448 (Fla. 4th DCA 1999) (citing Dep’t of Legal Affairs v. District Court of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983)) (“As has been stated countless times before, a per curiam affirmance decision without written opinion has no precedential value and should not be relied on for anything other than res judicata.”); Stilson v. Allstate Ins. Co., 692 So. 2d 979, 981 (Fla. 2d DCA 1997) (citing Dep’t of Legal Affairs, 434 So. 2d at 310) (“On appeal, two circuit court judges signed a per curiam affirmance without issuing a written opinion. A third circuit judge dissented without a written opinion. Thus, the decision cannot serve as precedent in another proceeding.”); Hicks v. Am. Integrity Ins. Co., 241 So. 3d 925, 929 (Fla. 5th DCA 2018) (“AIIC’s motion exemplifies the wisdom of the rule that such per curiam affirmed decisions without a written opinion have no precedential value and should only be relied upon to establish res judicata.”) (citing Dep’t of Legal Affairs, 434 So. 2d at 310, 313) (“We reiterate that such a decision is not a precedent for a principle of law and should not be relied upon for anything other than res judicata.”); Munnerlyn v. Wingster, 825 So. 2d 481, 483 (Fla. 5th DCA 2002) (holding that a party’s reliance on a per curiam affirmance with a dissenting opinion even from its own court was “misplaced,” since a dissenting opinion has no precedential value); Robinson v. State, Dep’t of HRS ex rel. Robinson, 473 So. 2d 228, 229 n.1 (Fla. 5th DCA 1985) (“We do not need to distinguish Thompson v. Lancaster, 458 So. 2d 442 (Fla. 5th DCA 1984), a per curiam affirmance without opinion. It is not precedential authority, because the reasons for the affirmance cannot be determined.”); St. Fort ex rel. St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 248 (Fla. 4th DCA 2005)State v. Swartz, 734 So. 2d 448, 448 (Fla. 4th DCA 1999)Terry v. State, 467 So. 2d 761, 765 (Fla. 4th DCA 1985) (“We caution the parties and trial courts not to rely on decisions of this court or other appellate courts rendered without opinion as precedential authority in other cases.”)).

[33] Dep’t of Transp. v. Fisher, 958 So. 2d 586, 591 (Fla. 2d DCA 2007) (“However, Crawford was a per curiam affirmance without opinion, and thus it does not constitute authority for any proposition.”); State Farm Mut. Auto. Ins. Co. v. CC Chiropractic, LLC, 245 So. 3d 755 (Fla. 4th DCA 2018) (citing Stilson v. Allstate Ins. Co., 692 So. 2d 979, 981 (Fla. 2d DCA 1997) (“In addition, the circuit court’s per curiam affirmance means that the decision cannot serve as precedent in another proceeding.”).

[34] Mobil Chemical Co. v. Hawkins, 440 So. 2d 378, 383 (Fla. 1st DCA 1983) (citing Dep’t of Legal Affairs, 434 So. 2d at 310) (“Appellee also contends this court overlooked its recent per curiam decision in Mobil Chemical Co. v. Garrison, 392 So. 2d 71 (Fla. 1st DCA 1980), which affirmed an award of both compensatory and punitive damages in connection with the sale of Mocap. Garrison was a per curiam affirm-ance without written opinion, which is no precedent even in this court.”)).

[35] Donahue v. Davis, 68 So. 2d 163, 169 (Fla. 1953) (citations omitted) (“The rule is well settled that in order to make a matter res judicata four conditions must concur, namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action, and (4) identity of the quality in the person for or against whom the claim is made.”).

[36] Acme Specialty Corp. v. City of Miami, 292 So. 2d 379, 380 (Fla. 3d DCA 1974).

[37] See notes 32, 35.

[38] St. Fort ex rel. St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 248-49 (Fla. 4th DCA 2005).

[39] See note 35.

[40] Berek v. Metropolitan Dade County, 396 So. 2d 756, 759 n.3 (Fla. 3d DCA 1981) (citing Golden Loaf Bakery, Inc. v. Charles W. Rex Construction, Inc., 334 So. 2d 585 (Fla. 1976) (England, J., concurring)); Cruz v. State, 437 So. 2d 692, 698 (Fla. 1st DCA 1983) (disapproved of by Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989) on other grounds) (“As we recently recognized in State of Florida, Commission on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st DCA 1983), if the same issues and parties are involved in two or more cases, a PCA becomes the law of the case, is res judicata, but is not stare decisis.”).

[41] Florida Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (same).

[42] State v. A.D.H., 429 So. 2d 1316, 1318 & n.4 (Fla. 5th DCA 1983) (“H.T.C. v. State is a per curiam affirmed decision without opinion. Thus, it is impossible for H.T.C. v. State to state the proposition of law for which appellant cited it as authority.…As support for the elementary rule that one should not cite as authority for a specific proposition of law a “per curiam affirmed without opinion” decision, compare Newmons v. Lake Worth Drainage Dist., 87 So. 2d 49, 51 (Fla. 1956), Schooley v. Judd, 149 So. 2d 587 (Fla. 2d DCA 1963) and Acme Specialty Corp. v. City of Miami, 292 So. 2d 379 (Fla. 3d DCA 1974)); see also Williams v. State, 45 So. 3d 14, 17 (Fla. 1st DCA 2013) (Webster, J., concurring) (“Of the eleven cases from this court relied on by the majority, ten are per curiam affirmances without opinion”). The majority withdrew their initial opinion and replaced the initial opinion on rehearing.

[43] Jackson v. State, 926 So. 2d 1262, 1264 n.5 (Fla. 2002); Fla. Const. art. V, §4(b)(1).

[44] Dep’t of Legal Affairs, 434 So. 2d at 312-13 (“The second issue is whether it is proper to cite such a decision to a court. It is evident that such a citation from another court has no relevance for any purpose and is properly excluded from a brief or oral argument”); Hicks v. Am. Integrity Ins. Co., 241 So. 3d 925, 929 (Fla. 5th DCA 2018) (“The [supreme] court held that it would not be proper to cite such a decision from another appellate court, explaining it has no relevance for any purpose and is properly excluded from a brief or oral argument.”).

[45] Goldberg v. Graser, 365 So. 2d 770, 773 (Fla. 1st DCA 1978) (citing State Dep’t of Public Welfare v. Melser, 69 So. 2d 347 (Fla. 1954)).

[46] Crittenden v. State, 67 So. 3d 1184, 1185 n.1 (Fla. 5th DCA 2011) (citing Elliott) (“We reiterate that a per curiam affirmance without opinion is not an indication that the case was not considered on the merits. Each and every appeal receives the same degree of attention.”); Elliott, 648 So. 2d at 139 (“Perhaps the court needs simply to restate the fundamental proposition that each and every appeal receives the same degree of attention and that a per curiam affirmance without opinion is not an indication of any kind of lesser treatment.”).

[47] See, e.g., Gore v. Harris, 772 So. 2d 1243 (Fla. 2000) (per curiam), rev’d, Bush v. Gore, 531 U.S. 98 (2000) (per curiam); see note 21.

[48] VLX Properties, Inc. v. Southern States Util., Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001) (en banc) (“But neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we have made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we have caused. Neither this court nor the law is served by our adhering to a previous position which we now believe to be wrong.”); Blackwell v. State, 86 So. 224, 237-38 (Fla. 1920) (Browne, C.J., dissenting) (“In such a case, as forcibly said by Chief Justice Bleckley [for the Georgia Supreme Court],… the maxim for a Supreme Court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia. Let this decision be right, whether other decisions were right or not.”).

[49] See note 47.

[50] Of course, an actual merits determination on appeal presupposes that the issues and arguments were properly preserved in the trial court to enable such merits appellate review.Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 325 (Fla. 1st DCA 2011) (citing Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005), quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”).

[51] Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA 1970); In re Report of the Committee on Dist. Court of Appeal Workload & Jurisdiction-Rule of Judicial Admin 2.036, 921 So. 2d 615, 617 (Fla. 2006) (“Florida’s court structure includes appellate courts known as district courts of appeal. This [c]ourt’s limited jurisdiction places district courts in the crucial position of serving as the appellate tribunal of last resort for most litigants.”).

[52] Winstead v. Adams, 363 So. 2d 807, 807-08 (Fla. 1st DCA 1978) (“There has been considerable public criticism as to the length of time it takes an appeal to move through the appellate process. Some of this delay is occasioned by the large volume of appeals that the appellate courts are called upon to process and adjudicate but much of it is occasioned by the failure of some attorneys to comply with the Florida Appellate Rules.”).

[53] See note 51.

[54] See, e.g., Aguiar v. State, 199 So. 3d 920, 930 (Fla. 5th DCA 2016) (en banc) (“We recede from F.J.R. and certify conflict with Wilson, J.R.P., McClendon, Faulkner, and Barrios.”); see Fla. R. App. P. 9.030(a) (providing limited jurisdiction of the Supreme Court).

[55] See notes 9, 10, 11, 12, 14, 51, 60.

[56] In re Report of the Committee on Dist. Court of Appeal Workload & Jurisdiction-Rule of Judicial Admin 2.036, 921 So. 2d 615, 617-18 (Fla. 2006) (“The five district courts of appeal, in raw numbers, have annually received a total of approximately [24,000] cases in recent years, while the Supreme Court has received approximately [2,500] cases.”); see also Williams v. State, 425 So. 2d 1163, 1164 (Fla. 5th DCA 1983) (Orfinger, C.J., concurring) (“The ever growing volume of appeals makes it impossible and impracticable to write opinions in every case, nor, as already pointed out, does an opinion serve a useful purpose in every case.”).

[57] See notes 6, 16.

[58] See notes 32, 35, 40.

[59] See note 60.

[60] Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 1st DCA 1983) (per curiam) (“Rather, we have taken this occasion to speak generally to the bar, and particularly to those who practice before this court, because our experience indicates that for many practitioners a motion of this type has become a routine step in appellate practice. In 1982, for example, motions for rehearing were filed in about one out of every four cases we heard on the merits. With very few exceptions they were denied.”).

[61] Fla. R. App. P. 9.330(a) (“A motion for rehearing, clarification, certification, or issuance of a written opinion may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”). In contrast, no such restrictions apply to a motion for rehearing filed in the trial court. Fla. R. Civ. P. 1.530.

[62] Unifirst Corp. v. City of Jacksonville, 42 So. 3d 247, 248 (Fla. 1st DCA 2009) (“In its motion for rehearing, [a]ppellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of [a]ppeal and that clarification “would provide a legitimate basis for Supreme Court review.” It is meritless to argue that an opinion which says nothing more than “[a]ffirmed” conflicts with a written opinion issued by another district court.”).

[63] McDonnell v. Sanford Airport Auth., 200 So. 3d 83, 85 (Fla. 5th DCA 2015) (en banc) (providing, in relevant part, “there may be instances where motions for rehearing are appropriate after the issuance of what is commonly referred to as a PCA”).

[64] See note 61; Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996) (emphasis in original) (“Motions for rehearing are strictly limited to calling our attention-without argument-to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only — i.e. merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so.”); Boardwalk at Daytona Dev., LLC v. Paspalakis, 212 So. 3d 1063, 1063 (Fla. 5th DCA 2017) (citing Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004), quoting Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996)) (“It should be noted that the filing of rule 9.330 motions should be done under very limited circumstances, it is the exception to the norm. Motions for rehearing are strictly limited to calling an appellate court’s attention — without argument — to something the court has overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.”).

[65] Id.

[66] See note 15.

[67] Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569 (Fla. 2005) (“Allowing appellate courts to impose sanctions on appellees for frivolous defense of trial court orders will not chill representation, but instead will emphasize that counsels’ obligations as officers of the court override their obligations to zealously represent their clients.”).

[68] Ardis v. Pensacola State College, 128 So. 3d 260, 263 (Fla. 1st DCA 2013) (per curiam) (same).

[69] See notes 19, 23, 24.

[70] See notes 10, 26, 51, 68.

H. Michael MunizH. Michael Muñiz, B.C.S., is appellate counsel at Kass Shuler, P.A., in Boca Raton, specializing in appeals and trial support. He obtained a B.S. in business administration from SUNY at Buffalo; a C.P.A. license from the Board of Accountancy of the State of Florida; and a J.D. from Nova Southeastern University.