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The Continuing Story of Certiorari

Appellate Practice

Certiorari. Even the word’s pronunciation confounds many attorneys, with no fewer than a half-dozen lingual variations in use.1 Elocution is relatively inconsequential, however, when compared with the complexities surrounding the writ’s application. The writ of certiorari is a critical part of Florida’s highly developed appellate system.

This article focuses on common law certiorari, to be distinguished from the statutory certiorari writ available to review administrative proceedings as a matter of right. The following sections present a brief overview of common law certiorari followed by discussions on several areas where Florida law on certiorari continues to evolve.

The Role of Certiorari in Florida
Certiorari originated in the English legal tradition as a writ, or order, directing an inferior tribunal to transmit the records of a particular case so the higher court could review the proceedings.2 When Florida voters amended the state constitution in 1980 and eliminated the state Supreme Court’s certiorari jurisdiction, unsuccessful parties in the district courts of appeal lost the opportunity to seek certiorari review from the Florida Supreme Court.3 Common law certiorari became relegated to review proceedings in the circuit and district courts.

Of course, appeals are generally available to parties as a matter of right at the conclusion of all trial court proceedings,4 and Florida Rule of Appellate Procedure 9.130 permits interlocutory review of many nonfinal circuit court orders. Florida, thus, has a system for plenary and interlocutory review apart from certiorari, which might suggest the writ’s place in the law. Common law certiorari lies at the appellate margin, functioning as a safety net for matters that otherwise would fall through the gaps in Florida’s appellate system.5

Certiorari retains its unique place in Florida’s appellate scheme through two features: the writ’s heightened requirements for relief and its discretionary nature. To obtain a writ of certiorari, a petitioner must demonstrate: 1) the challenged order causes material injury that cannot be corrected on appeal, sometimes described as irreparable harm, and 2) the challenged order constitutes a departure from the essential requirements of law, which amounts to more than simple legal error.6 The standards for certiorari should be applied on a case-by-case basis,7 and even when the writ’s requirements are met, the decision to issue a writ of certiorari is ultimately discretionary.8

Historical and Ongoing Developments
How the judiciary examines certiorari petitions is a matter of continuing evolution. The following discussion considers four areas of historical and ongoing development with respect to certiorari petitions and the irreparable harm requirement in particular.

Orders Requiring Disclosure of Irrelevant Financial Information — One area where certiorari law continues to evolve concerns orders that require the disclosure of irrelevant financial information. In Martin-Johnson v. Savage, 509 So. 2d 1097 (Fla. 1987), the Florida Supreme Court considered whether certiorari could be used to review an order denying a motion to dismiss or strike a claim for punitive damages — an order that ensured the petitioner’s financial condition was relevant to the case. Considering the question not materially different from a certiorari challenge to an order permitting financial discovery, the court held, “[W]e do not believe the harm that may result from discovery of a litigant’s finances is the type of ‘irreparable harm’ contemplated by the standard of review for certiorari.”9 The court also observed that the financial information at issue in the case was not protected by any privilege and that the petitioner’s privacy interests in the materials did not rise “to the level of trade secrets, work product, or information about a confidential informant.”10

The Supreme Court further reasoned that if it permitted certiorari relief to address the financial information at issue, the same rationale could as easily be applied to the erroneous denial of a motion for summary judgment or a motion to join or dismiss a party.11 The court stated that “[l]itigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case” and viewed the governing authorities as holding such harm insufficient to permit certiorari review.12

Prior to Martin-Johnson, numerous Florida district court decisions granted certiorari petitions directed at orders compelling discovery of irrelevant financial information.13 Martin-Johnson acknowledged such decisions but did not disapprove them.14 However, Martin-Johnson could be read as holding that erroneous disclosures of nonprivileged financial information cannot constitute irreparable harm, and district court decisions interpreted Martin-Johnson in this manner.15

The district courts nonetheless remained uncomfortable with erroneous financial disclosures. A First District decision initially interpreted Martin-Johnson restrictively to preclude certiorari based on financial information.16 On rehearing, however, the court reversed direction, granting the petition and limiting Martin-Johnson to the context of motions to dismiss or strike claims for punitive damages.17 Other district court decisions also viewed Martin-Johnson in a similarly narrow way.18

The Supreme Court further explored its certiorari views with its decisions in Allstate Insurance Co. v. Langston, 655 So. 2d 91 (Fla. 1995), and Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995). Langston held that irreparable harm can be shown “when it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information,” but the court also held that the discovery of irrelevant information does not necessarily equate with irreparable harm.19 Globe Newspaper held that permitting a punitive damages claim to be pled without conducting the statutorily required evidentiary examination constitutes harm justifying certiorari review, while error in the trial court’s evidentiary examination process will not support certiorari review.20

Read together, Langston and Globe Newspaper suggest the discovery of financial information may give rise to irreparable harm for purposes of certiorari when the information is shown to be wholly irrelevant and when the trial court fails to follow the statutory procedure for pleading punitive damages claims. In either respect, interpreting Martin-Johnson to hold that disclosures of financial information cannot be the subject of irreparable harm would seem inconsistent with the court’s more recent pronouncements.

The Fourth District embraced the restrictive view of Martin-Johnson in Eberhardt v. Eberhardt, 666 So. 2d 1024 (Fla. 4th DCA 1996), where the district court held certiorari unavailable to address financial disclosures.21 Yet the Fourth District changed course in Woodward v. Berkery, 714 So. 2d 1027 (Fla. 4th DCA 1998), finding irreparable harm from the disclosure of irrelevant financial information. Woodward emphasized that Florida’s constitutional right of privacy extends to financial information and that the respondent in the case intended to disclose the financial information at issue to the press, which in turn intended to publish it.22

Later, in Straub v. Matte, 805 So. 2d 99 (Fla. 4th DCA 2002), the Fourth District relied heavily on Woodward and held that “the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.”23 Straub did not involve any publication concern. The Fifth District also relied on Woodward to hold that financial information is protected by Florida’s constitutional right of privacy “if there is no relevant or compelling reason to compel disclosure.”24

In an interesting twist, the Supreme Court adopted key portions of Woodward and Straub in a case involving stays of fraudulent transfer claims, Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189 (Fla. 2003). Friedman quoted Woodward’s holding that “the constitutional right of privacy undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for a court to determine contested issues. . . . ”25 Friedman also quoted Straub’s statement that the disclosure of irrelevant personal financial information may cause irreparable harm.26

Today, the disclosure of financial information is accepted as causing irreparable harm “simply because it is financial information.”27 The district courts require the party seeking to discover financial information to demonstrate its relevance.28 Where such evidence is presented, certiorari relief is not available, since an order compelling production of relevant financial information does not cause the irreparable harm necessary to issue a writ of certiorari.29

Orders Requiring Overbroad, Burdensome Discovery — Florida law is less settled with respect to overbroad, burdensome discovery. In Caterpillar Indus., Inc. v. Keskes, 639 So. 2d 1129 (Fla. 5th DCA 1994), the Fifth District held that certiorari “is a proper remedy for overbroad discovery orders because once discovery is wrongfully granted, the complaining party is beyond relief.”30 Based on that principle, numerous district court decisions issued writs of certiorari to quash discovery that was unduly burdensome or overbroad.31

As previously discussed, however, the Supreme Court’s decision in Martin-Johnson confirmed that litigation of a nonissue will always be inconvenient and create litigation expenses that are not the type of harm remediable by certiorari.32 Likewise, in Langston, the high court reiterated that the writ of certiorari is available to review discovery orders only if they cause material injury of an irreparable nature.33

Since the Supreme Court issued Martin-Johnson and Langston, two of the five district courts of appeal have discussed an irreparable harm standard particular to overbroad discovery challenges. In Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197 (Fla. 4th DCA 2000), the Fourth District stated that economic concerns “do not rise to the level required by Martin-Johnson.”34 The court expressly distinguished the burdensomeness claim in that case from an objection, contending the requested discovery “would actually ruin the objector’s business” and cast the petitioner into “financial ruin.”35 The court also stated that an erroneous order compelling discovery does not merit a writ of certiorari “when the cost and effort to do so is burdensome but not destructive. . . . ”36

The Second District cited Topp Telecom’s “financial ruin” discussion favorably in Allstate Insurance Co. v. Hodges, 855 So. 2d 636 (Fla. 2d DCA 2003). Hodges quoted Topp Telecom in stating that an erroneous order compelling discovery is insufficient to merit relief when compliance is “burdensome but not destructive.”37

Neither the First, Third, nor Fifth districts has embraced Topp Telecom’s “financial ruin” standard. In a concurrence to a later Fourth District decision, Judge Klein characterized the “financial ruin” discussion as dicta.38 The First District avoided the issue in Commonwealth Land Title Insurance Co. v. Higgins, 975 So. 2d 1169 (Fla. 1st DCA 2008), holding the standard in all events does not apply at the precertification stage of a putative class action.39 Commonwealth granted the petition in that case based on uncontradicted evidence that the requested discovery would require the petitioner to expend over $6.9 million in copy costs and $1.6 million for privilege review.40 Judge Kahn dissented, but did not squarely embrace the financial ruin standard.41

The Fifth District maintains that certiorari “is an appropriate remedy for discovery orders that compel compliance with patently overbroad discovery requests.”42 In Stihl Southeast, Inc. v. Green Thumb Lawn & Garden Center, 974 So. 2d 1200 (Fla. 5th DCA 2008), the Fifth District quashed what the court characterized as a “patently overbroad” production order because it lacked geographic and time limitations.43 In another case, the Fifth District referred to the governing standard as when a lower court issues “an overly broad discover order.”44 Recently, the Fifth District also utilized certiorari to quash an order requiring the burdensome production of a privilege log before the trial court addressed the petitioner’s objections to the underlying materials’ discoverability.45

Like the Fifth District, the Third District has continued to apply the irreparable harm standard in burdensomeness certiorari cases without referencing “financial ruin.” In Royal Caribbean Cruises, Ltd. v. Doe, 964 So. 2d 713 (Fla. 3d DCA 2007), the Third District granted a certiorari petition and quashed a trial court’s order requiring a cruise line to perform a manual search of every incident/accident report for 19 vessels over a three-year period.46

Whether the standards applied by the Second and Fourth districts are truly in conflict with the standards applied by other districts is not settled. If the Second and Fourth districts merely require the petitioner to show that the burdens imposed by the challenged order are extraordinary, given the petitioner’s circumstances, then perhaps no genuine distinction exists. At the same time, if a burden that would create irreparable harm in the First, Third, and Fifth districts would not do so for the same petitioner in the Second and Fourth districts, then the Supreme Court may have to resolve the conflict and determine the correct standard to be applied in this context.

Orders Denying Discovery — Another area in which certiorari law continues to evolve concerns review of orders denying discovery. The Fifth District long ago observed that while common law certiorari is available to review orders that grant discovery of a nondiscoverable item, it is generally held that certiorari may not be utilized to review orders that deny discovery because such orders, if in error, can be rectified on plenary appeal.47 Indeed, for many years, the Fourth District appeared to follow a rule that “plenary appeal provides an adequate remedy to address the legal propriety of an order precluding discovery.”48 The First District similarly declared it a “well-settled” principle that an order denying discovery does not meet the test for certiorari relief.49

All of the district courts, however, including the First and Fourth districts, have granted certiorari relief from orders denying discovery.50 In 2007, the Fourth District sat en banc to recede from its prior statements suggesting plenary appeal will always provide an adequate remedy for erroneous denials of discovery.51 The Fourth District announced, “[W]e do not have a hard and fast rule against reviewing orders denying discovery.”52

If certiorari relief in general is rarely available, then certiorari relief from a denial of discovery is extremely rare.53 The district courts have recognized that orders denying the right to take the testimony of a material witness may qualify for certiorari review on the premise that there will be no practical way to determine after the final judgment what the testimony would have been or how it would have affected the outcome.54 In Giacalone v. Helen Ellis Memorial Hospital Foundation, Inc., 8 So. 3d 1232 (Fla. 2d DCA 2009), the Second District explained that certiorari relief may be appropriate when the requested discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence and the order “effectively eviscerates a party’s claim, defense, or counterclaim.”55 This language appears to be an application of the recognized standard for discovery denials, not a heightened standard, since the Second District has elsewhere quashed orders denying discovery without determining a claim or defense would otherwise be eviscerated.56

Jurisdictional Approach to Conducting Certiorari Review — The final area to be examined here involves a brief look at how the appellate courts examine certiorari petitions. In Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995), the Second District held that whether an order causes material harm that cannot be remedied by appeal is a jurisdictional matter, and an affirmative finding on that question is a jurisdictional prerequisite to consideration of whether, in the reviewing court’s discretion, the order departs from the essential requirements of law.57 All five districts and the Supreme Court have expressly adopted this jurisdictional approach to certiorari review,58 and an increasing number of opinions follow this harm-first approach when examining certiorari petitions.

Nonetheless, the district courts continue to release certiorari opinions that address the degree of error in the challenged order, even though they find no irreparable harm and, thus, decline to grant relief. Doing so provides meaningful assistance to the parties and the trial court as the case proceeds below. However, if “a petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before th[e] court has power to determine whether the order departs from the essential requirements of the law,”59 then a court’s statement regarding error in the absence of irreparable harm should not be mistaken as a controlling decision on the merits of the lower court’s ruling.

Certiorari review is ultimately rooted in society’s need to obtain, and the judiciary’s power to provide, meaningful relief from erroneous trial court orders. As the judiciary continues to change its views on the interests the law should protect, Florida law on certiorari continues to change as well.

1 See generally Charles Lane, It’s Cert., To Be Sure. But How Do They Say It? Let’s Count the Ways, Washington Post, Dec. 3, 2001, at A19.

2 Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995).

3 See Fla. Const. art. V, §3(b) (1980) (approved by the electorate March 11, 1980); Vetrick v. Hollander, 464 So. 2d 552, 553 (Fla. 1985) (“The Florida Supreme Court does not have common law certiorari jurisdiction.”). For an interesting discussion of the views for and against the 1980 amendments, see the multiple opinions contained in Jenkins v. State, 385 So. 2d 1356 (Fla. 1980), and the sources cited therein.

4 See Fla. R. App. P. 9.030(b)(1)(A), (c)(1)(A).

5 See Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (“The writ functions as a safety net. . . and was intended to fill the interstices between direct appeal and the other prerogative writs.”).

6 E.g., Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004); Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003); Belair v. Drew, 770 So. 2d 1164, 1166 (Fla. 2000); Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 214 (Fla. 1998); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987).

7 Carroll Contracting, Inc. v. Edwards, 528 So. 2d 951, 952 (Fla. 5th D.C.A. 1988).

8 Combs v. State, 436 So. 2d 93, 96 (Fla. 1983) (“A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law.”).

9 Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987).

10 Id.

11 Id.

12 Id. (citing Wright v. Sterling Drugs, Inc., 287 So. 2d 376 (Fla. 2d D.C.A. 1973)).

13 E.g., Jenkins v. Milliken, 498 So. 2d 495 (Fla. 2d D.C.A. 1986); Solodky v. Wilson, 474 So. 2d 1231 (Fla. 5th D.C.A. 1985); United States Fire Ins. Co. v. Clearwater Oaks Bank, 421 So. 2d 783 (Fla. 2d D.C.A. 1982).

14 Martin-Johnson, 509 So. 2d at 1099.

15 E.g., Eberhardt v. Eberhardt, 666 So. 2d 1024, 1025 (Fla. 4th D.C.A. 1996); Short v. Fleetwood Motor Homes of Pennsylvania, Inc., 511 So. 2d 747 (Fla. 5th D.C.A. 1987).

16 Mazda Motor Corp. v. Quinn, 524 So. 2d 1021, 1023 (Fla. 1st D.C.A. 1987).

17 Id. at 1023-24.

18 E.g., Pearce v. Doral Mobile Home Villas, Inc., 521 So. 2d 282, 284-85 (Fla. 2d D.C.A. 1988); Humana of Florida, Inc. v. Evans, 519 So. 2d 1022 (Fla. 5th D.C.A. 1987).

19 Allstate, 655 So. 2d at 95.

20 Globe Newspaper, 658 So. 2d at 520.

21 Eberhardt, 666 So. 2d 1025.

22 Woodward, 714 So. 2d at 1037-38.

23 Straub, 805 So. 2d at 100.

24 Mogul v. Mogul, 730 So. 2d 1287, 1290 (Fla. 5th D.C.A. 1999).

25 Friedman, 863 So. 2d at 194 (quoting Woodward, 714 So. 2d at 1036).

26 Id. (quoting Straub, 805 So. 2d at 100).

27 Spry v. Professional Employer Plans, 985 So. 2d 1187, 1188 (Fla. 1st D.C.A. 2008).

28 Id.; see also Vega v. Swait, 961 So. 2d 1102, 1103-04 (Fla. 4th D.C.A. 2007).

29 In re Estate of Sauey, 869 So. 2d 664, 665 (Fla. 4th D.C.A. 2004); see also Capco Prop., LLC v. Monterey Gardens of Pinecrest, 982 So. 2d 1211, 1214-15 (Fla. 3d D.C.A. 2008).

30 Caterpillar, 639 So. 2d at 1129 n.1.

31 E.g., Wooten, Honeywell & Kest, P.A. v. Posner, 556 So. 2d 1245 (Fla. 5th D.C.A. 1990); Caterpillar, 639 So. 2d 1129 (Fla. 5th D.C.A. 1994); Jerry’s South, Inc. v. Morran, 582 So. 2d 803 (Fla. 1st D.C.A. 1991).

32 Martin-Johnson, 509 So. 2d 1097, 1100 (Fla. 1987).

33 Allstate, 655 So. 2d at 94-95.

34 Topp Telecom, 763 So. 2d at 1200-01.

35 Id. at 1199-1200.

36 Id. Judge Stone authored a special concurrence in Topp Telecom, expressing disagreement with the notion that certiorari is available for overbroad discovery only if the order would put the petitioner out of business. Id. at 1201 (Stone, J., concurring).

37 Hodges, 855 So. 2d at 641.

38 Communities Fin. Co., LLC v. Bjork, 987 So. 2d 231, 232 (Fla. 4th D.C.A. 2008).

39 Commonwealth, 975 So. 2d at 1178.

40 Id.

41 Id. at 1179-83 (Kahn, J., dissenting).

42 Stihl Southeast, Inc. v. Green Thumb Lawn & Garden Center, 974 So. 2d 1200, 1201 (Fla. 5th D.C.A. 2008).

43 Id. at 1201.

44 Universal City Dev. v. Williams, 963 So. 2d 351, 353 (Fla. 5th D.C.A. 2007).

45 Life Care Ctrs. of America v. Reese, 948 So. 2d 830, 832-33 (Fla. 5th D.C.A. 2007); see also TT of Longwood, Inc. v. Briggs, 985 So. 2d 62, 62 (Fla. 5th D.C.A. 2008) (quashing order granting merits discovery prior to class certification).

46 Royal Caribbean, 964 So. 2d at 719.

47 Industrial Tractor Co. v. Bartlett, 454 So. 2d 1067, 1067 (Fla. 5th D.C.A. 1984).

48 Calfin v. McInnis, 683 So. 2d 1137, 1137 (Fla. 4th D.C.A. 1996).

49 Vicorp Rests., Inc. v. Aridi, 510 So. 2d 1082, 1083 (Fla. 1st D.C.A. 1987).

50 Queler v. Receivership of Cumberland Cas. & Sur. Co., 1 So. 3d 1140, 1141 (Fla. 1st D.C.A. 2009); Lifemark Hosps. of Florida v. Izquierdo, 899 So. 2d 478, 479-80 (Fla. 3d D.C.A. 2005); Bush v. Schiavo, 866 So. 2d 136, 138-40 (Fla. 2d D.C.A. 2004); Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th D.C.A. 2000); Alachua Gen. Hosp., Inc. v. Stewart, 649 So. 2d 357, 358-59 (Fla. 1st D.C.A. 1995); Brennan v. Board of Pub. Instruction, 244 So. 2d 463, 463-64 (Fla. 4th D.C.A. 1971).

51 Power Plant Ent., LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So. 2d 565, 566-67 (Fla. 4th D.C.A. 2007) (en banc).

52 Id. at 567.

53 See Palmer v. WDI Sys., Inc., 588 So. 2d 1087, 1088 (Fla. 5th D.C.A. 1991) (referring to “extremely rare” exceptions to general rule certiorari is unavailable for orders denying discovery); see also Power Plant Ent., 958 So. 2d at 567.

54 E.g., Lifemark Hosps. of Florida v. Izquierdo, 899 So. 2d 478, 480 (Fla. 3d D.C.A. 2005); Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th D.C.A. 2000); Ruiz v. Steiner, 599 So. 2d 196, 197-98 (Fla. 3d D.C.A. 1992); see also Colonial Penn Ins. Co. v. Blair, 380 So. 2d 1305 (Fla. 5th D.C.A. 1980) (quashing order denying request to produce a transcript).

55 Giacalone, 8 So. 3d at 1234-35.

56 Dees v. Kidney Group, LLC, 34 Fla. L. Weekly D1735, 2009 WL 2602250 (Fla. 2d D.C.A. Aug. 26, 2009); Bush v. Schiavo, 866 So. 2d 136, 140 (Fla. 2d D.C.A. 2004).

57 Parkway Bank, 658 So. 2d at 649.

58 Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998); Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169, 1176 (Fla. 1st D.C.A. 2008); Beekie v. Morgan, 751 So. 2d 694, 698 n.4 (Fla. 5th D.C.A. 2000); Sabol v. Bennett, 672 So. 2d 93, 94 (Fla. 3d D.C.A. 1996); Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th D.C.A. 1996); Parkway Bank, 658 So. 2d at 649.

59 Parkway Bank, 658 So. 2d at 649.

Matthew J. Conigliaro received his J.D. from Tulane University School of Law. He is a former law clerk to Jacqueline R. Griffin of the Fifth District Court of Appeal and a former deputy solicitor general of Florida. He is a shareholder with Carlton Fields, P.A., in its St. Petersburg office and practices with the firm’s appellate practice and trial support group.

This column is submitted on behalf of the Appellate Practice Section, Dorothy F. Easley, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.

Appellate Practice