The Florida Supreme Court Abandons the Misapplication Theory of Express and Direct Conflict Jurisdiction
The Misapplication Theory of Express and Direct Conflict Jurisdiction has existed in Florida appellate jurisprudence since 1964.[1] Under a banner of maintaining uniformity, this jurisdictional theory provided the Florida Supreme Court with a constitutional basis to review cases in which they felt a lower court misapplied a precedent, even if the lower court’s decision was an extension rather than a direct application of supreme court rulings. Although this jurisdictional theory was limited in its scope after the 1980 constitutional amendment to Fla. Const. art. V, it has been invoked by the Florida Supreme Court as recently as 2018 as a basis for granting jurisdiction.[2]
In line with the court’s recent trend of strictly interpreting its constitutional mandate and limiting its own jurisdiction, however, the Florida Supreme Court has abandoned the misapplication theory of jurisdiction in its unanimous decision in Askew v. Department of Children and Families, 385 So. 3d 1034 (Fla. 2024). Askew represents the most recent application of the narrow express and direct conflict jurisdiction standard espoused in Kartsonis v. State, 319 So. 3d 622 (Fla. 2021), and signals the court’s continuing commitment to a textualist interpretation of its own authority.[3]
Discretionary Conflict Jurisdiction at the Florida Supreme Court
The Florida Supreme Court has been a core part of Florida’s constitutional structure since the first state constitution of 1838.[4] However, from statehood until the constitutional revisions of 1956, the supreme court sat as the only court of appeal for the state.[5] Due to an ever-increasing number of cases before the supreme court, the 1956 constitutional revisions to the Florida Constitution created district courts of appeal to allow the Florida Supreme Court to focus on “issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.”[6]
Yet, with this division of appellate authority, new categories of jurisdiction had to be created for the Florida Supreme Court to resolve conflicts and questions of law that could not be answered at the district courts. The Florida Constitution broke these new jurisdictional categories into the three types that still exist today: mandatory jurisdiction, discretionary jurisdiction, and writ jurisdiction.[7] These categories made the Florida Supreme Court a court of inherently limited jurisdiction, since the Florida district courts were created to be appellate courts of final appeal rather than merely existing as intermediate courts.[8] Although the change of appellate structure enabled more expeditious resolution of conflicts, the supreme court immediately began to cut out exceptions from its new role to expand its own jurisdictional mandate. First, the court adopted a broad interpretation of when a trial court directly passed on the validity of a statute and adopted a judicial theory of granting jurisdiction based on a trial court’s inherent review of a statute even when it was not explicitly stated in the opinion below.[9] These doctrines functionally gave the court power to review any decisions in criminal and civil cases where there were statutory rights at issue and gave a way for many parties to simply bypass the district courts.[10] Second, in Foley v. Weaver Drugs, Inc., 177 So. 2d 221 (Fla. 1965), the court gave itself the power to review decisions without opinions from district courts (PCAs).[11] These PCA cases were decisions in which the district courts did not find enough merits to “warrant a full written opinion upon the basis of that opinion’s contribution to the jurisprudence of this State and those cases of great public interest.”[12] By refusing to write a full opinion, a district court intended its PCA to be the final statement on a settled issue of law. The Florida Supreme Court’s choice to review these decisions, however, functionally relegated the district courts to simply being courts of intermediate appeal.[13]
In response to this mandate overreach by the Florida Supreme Court, Florida voters passed the 1980 amendment to Fla. Const. art. V, which added the word “expressly” into the discretionary jurisdiction of Fla. Const. art. V, §3(b). The amendment’s purpose was to limit the jurisdictional review of the supreme court and to overturn Foley constitutionally.[14] In addition, the 1980 revision to Fla. Const. art. V limited the Florida Supreme Court’s mandatory and discretionary jurisdiction, eliminated its certiorari jurisdiction, and removed its discretionary jurisdiction to review nonfinal orders.[15] As a direct result, the Florida Supreme Court could hear only cases on appeal from the district courts within the express authority granted by Fla. Const. art. V, §3(b).
As currently written, art. V, §3(b), lays out certain cases in which the court has mandatory jurisdiction (like death penalty cases)[16] and others in which the court has discretionary jurisdiction.[17] One of the most often invoked types of discretionary jurisdiction is express and direct conflict jurisdiction.[18] For a party to invoke this jurisdiction at the supreme court, they must show that a decision of a district court expressly and directly conflicts with another district court decision or with a Florida Supreme Court decision on the same question of law.[19] The decision on appeal, however, cannot simply rely on inherent or implied conflict.[20] It has to clearly announce a conflicting rule of law, or otherwise rule in a manner that reaches an opposite conclusion, as another case, despite substantially the same controlling facts.[21] While a citation and direct repudiation can presumptively show conflict with another case, a district court opinion needs to have a statement expressly addressing a question of law within the four corners of the opinion for the supreme court to have subject-matter jurisdiction to review.[22] The consequence of limiting jurisdiction in this way is that the court cannot hear or review a case simply because it disagrees with the analysis or conclusions of a lower court.[23]
The Rise of the Misapplication Doctrine
Although first announced as a derivation of the conflict standards set in Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960), the misapplication theory of jurisdiction began to formally take shape in the 1970’s when the Supreme Court adopted a very wide interpretation of its own powers. The doctrine, as created and applied by the Florida Supreme Court, held that jurisdiction-granting conflict existed when a lower court failed to properly apply controlling precedent or failed to distinguish between the controlling precedent and the case under consideration.[24] According to Harry Lee Anstead, et al., in their seminal article on the operation and jurisdiction of the Florida Supreme Court, this jurisdictional theory created three distinct types of misapplication: “erroneous reading” of precedent, “erroneous extension” of precedent, and “erroneous use” of facts.[25]
Although the 1980 amendment to Fla. Const. art. V added “expressly” into conflict considerations, it appears that the court initially considered the misapplication theory of jurisdiction to be an application of express conflict. In cases prior to the 1980 amendment, the supreme court appeared to use misapplication as a type of direct conflict when the district courts below stated a conclusion of law that conflicted with supreme court precedent.[26] After the 1980 amendment to art. V, the supreme court would often invoke the misapplication theory as justification for jurisdiction in cases in which it would otherwise lack a jurisdictional hook.[27] In 2014, an article in The Florida Bar Journal claimed:
It increasingly appears, as of the date of this writing, that a reliable majority of five justices may well be inclined to take jurisdiction in cases in which “misapplication conflict” can be gleaned from a review of the controlling case law rather than from the four corners of the majority DCA opinion in the case under review.[28]
Even though many justices have held that the misapplication theory was a valid basis for jurisdiction, it had always remained an unsettled doctrine in Florida law, with several noteworthy justices voicing dissent to the doctrine over the years. As early as 1970, Justice B. Campbell Thornal noted in his dissent to Gibson v. Maloney, 231 So. 2d 823, 833 (Fla. 1970): “If we think the District Court of Appeal reached the wrong conclusion, the majority mysteriously finds some conflict.” He would go on to argue, “[I]f this Court keeps finding ‘direct conflict’ at the rate we are moving,. ..in a relatively short time the District Court of Appeal will cease to be courts of final jurisdiction as intended by our [c]onstitution.”[29] In more recent years, Justice Charles Wells,[30] Justice Ricky Polston,[31] and Justice Charles Canady[32] all wrote dissents focused on rejecting jurisdiction in cases in which the supreme court used misapplication as a basis for accepting review.
Askew and a New Textualist Course
In Askew, the Florida Supreme Court was presented with a question of whether the First District Court of Appeal had misapplied a legal doctrine from the Third District Court of Appeal. Historically, interdistrict misapplication has not been a basis for misapplication jurisdiction.[33] In dismissing the petition for jurisdiction, however, the Florida Supreme Court eliminated the entire doctrine of misapplication jurisdiction based on a textualist reading of its own power of review.
As a background to the decision, Kevin Askew brought a lawsuit against his former employer, the Florida Department of Children and Families (DCF), under the Florida Civil Rights Act, F.S. Ch. 760, alleging unlawful constructive termination based on disability and gender.[34] Although Askew initially prevailed at the trial court with a jury verdict in his favor on his disability claim, the First District reversed and remanded with instructions to enter a final judgment in favor of DCF.[35] Before the ruling of the First District, Kevin Askew passed away,[36] but his estate appealed the adverse ruling. It contended that the First District had misapplied the decision of City of Miami v. Kory, 394 So. 2d 494 (Fla. 3d DCA 1981), and that the supreme court should accept review under the misapplication theory.[37]
Rather than accept jurisdiction, the court denied review and declared that, “‘misapplication jurisdiction’ is beyond the scope of our conflict jurisdiction under [art.] V, [§]3(b)(3) of the Florida Constitution.”[38] Citing to Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114 (Fla. 2021), the court determined that there was no justification for granting jurisdiction in any case unless there was a conflict that could satisfy the two-part standard set out in the court’s previous decision of Kartsonis.[39] The court went on to conclude, “[W]e acknowledge the flaws in our misapplication jurisprudence and recognize that we overstepped our constitutional authority by applying this theory of conflict jurisdiction. Accordingly, we now affirm what Kartsonis implies: misapplication alone is not sufficient to trigger conflict jurisdiction under article V, section 3(b)(3) of our constitution.”[40]
Conflict Jurisdiction in a Post-Askew World
By issuing the Askew opinion and subsequently discarding the misapplication theory of jurisdiction, the Florida Supreme Court has signaled a clear textualist interpretation of its own powers and authority. The court has plainly reinforced its mandate that express and direct conflict “is a strict standard” of law.[41] Even before its decision in Askew, the Florida Supreme Court has been consistently reducing the number of cases for which it accepts review, and as a result, appellate practitioners will be forced to adopt new means of arguing jurisdiction for their cases at the Florida Supreme Court.
Functionally, the Florida Supreme Court has made it clear that there are now only two ways to obtain review based on express and direct conflict as set out in the Kartsonis decision. The first means for obtaining jurisdiction is for a petitioner to show that the opinion below contains an “announcement of a conflicting rule of law.”[42] Recent decisions by the Florida Supreme Court using this jurisdictional hook show that the announcement of law cannot be just an apparent conflict, but rather the announcement must be expressly stated within the four corners of the opinion below and state a conclusion that directly contradicts another district court of appeal or the supreme court.[43] To convince the court to accept jurisdiction on this basis, jurisdictional briefs should clearly focus argument on the conflict and cite to Kartsonis as authority. The court, however, has granted jurisdiction in some cases in which a lower court failed to properly apply a clear standard of law.[44] Although they may appear to contradict the strict jurisdictional standards in Kartsonis, these cases may provide the supreme court with jurisdiction under a judicial error analysis in which a lower court is inherently in conflict with decisions of the court.
The second means for obtaining jurisdiction is to show that the opinion applies “a rule of law in a manner that results in a conflicting outcome despite ‘substantially the same controlling facts.’”[45] This standard does not require that the facts allegedly in conflict must be identical. The cases, however, cannot be distinguishable in any way or else the court will refuse review since the decisions can be construed as extensions of a decision rather than a direct conflict.[46]
Another means to try and obtain review at the supreme court is to pursue a certified conflict from the district courts themselves. In cases in which there is likely to be an express and direct conflict, some districts will certify conflict with a decision from another district court.[47] A district court can certify these conflicts sua sponte, or upon the motion of a party under Florida Appellate Rule 9.330.[48] Since certified conflict cases fall under a different section of art. V, namely §3(b)(4), the supreme court is more likely to accept review. An analysis of recent decisions by the court over the last year shows that many of its decisions on questions of civil law come from certified conflicts rather than party-raised express and direct conflicts.[49] This also applies to cases in which the district court certifies a matter as one of great public importance.[50] Thus, while the doctrine of misapplication is no longer good law and should not be used as a basis for jurisdiction, there still exist numerous ways to invoke supreme court review for a meritorious case. Discerning appellate practitioners should ensure that their jurisdictional briefs accord with the express rules the court has stated it will follow.
[1] See Furlong v. Leybourne, 171 So. 2d 1, 4 (Fla. 1964) (“[T]he court in its decision in this case misapplied the doctrine of ‘the law of the case’ as announced in the cases relied upon by petitioners…Therein lies the decisional conflict as it will in every case where the doctrine is misapplied and the merits of the particular case are not reached.”).
[2] Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268, 271 (Fla. 2018) (holding the Fourth District Court of Appeal misapplied the abuse of discretion standard when reviewing the trial court’s denial of the motion for remittitur).
[3] See generally Nicholas P. McNamara, What the Textualist Revolution in Florida Jurisprudence Means for Practitioners, 98 Fla. B. J. 44 (May/June 2024). See also Askew, 385 So. 3d at 1036-37 (citing to Sheffield, 329 So. 3d at 119).
[4] Fla. Const. art. V, §§1-4 (1838). This article lays out the historical appellate jurisdiction of the Florida Supreme Court.
[5] Andrew L. Adler, A Tribute to Justice Arthur J. England, Jr.: Father of Florida’s Modern-Day Appellate Judicial Structure, 88 Fla. B. J. 26 (Feb. 2014).
[6] Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958). See also Arthur J. England, Jr., et al., Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. 147, 150-53 (1980).
[7] Fla. Const. art. V, §4(b) (1956). These look very similar to the current jurisdictional standards in Fla. Const. art. V, §3(b) (1980), with the only major difference being that the supreme court could directly review (as a matter of right) any final judgment or order from a trial court “directly passing upon the validity of a state statute or a federal statute or treaty, or construing a controlling provision of the Florida or federal constitution.” See also England, et al., Constitutional Jurisdiction at 150–51.
[8] See Ansin, 101 So. 2d at 810 (“It was never intended that the district courts of appeal should be intermediate courts.”); but see Bunkley v. State, 882 So. 2d 890, 925 (Fla. 2004) (Pariente, J., dissenting) (arguing that Florida district courts are a type of “mid-level” or “intermediate” court of appeal).
[9] England, et al., Constitutional Jurisdiction at 151. See also, e.g., Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439, 441-42 (Fla. 1959) (holding that the supreme court had jurisdiction to review a case because the decision below inherently ruled on the validity of a statute).
[10] England, et al., Constitutional Jurisdiction at 151–52.
[11] Foley, 177 So. 2d at 225.
[12] Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA 1970).
[13] Id.
[14] Arthur J. England, Jr. & Richard C. Williams, Jr., Florida Appellate Reform One Year Later, 9 Fla. St. U. L. Rev. 221, 231 (1981).
[15] Id. at 226-54.
[16] Fla. Const. art. V, §3(b)(1).
[17] See Fla. Const. art. V, §3(b)(3)-(9).
[18] Fla. Const. art. V, §3(b)(3) (declaring that the supreme court “[m]ay review any decision of a district court of appeal that…expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law”).
[19] See Dep’t of Health & Rehab. Servs. v. Nat’l Adoption Counseling Serv., Inc., 498 So. 2d 888, 889 (Fla. 1986).
[20] Id.; Kartsonis, 319 So. 3d at 623. See also Nielsen, 117 So. 2d at 734.
[21] Nat’l Adoption, 498 So. 2d at 889; Kartsonis, 319 So. 3d at 623. See also Nielsen, 117 So. 2d at 734.
[22] See Tippens v. State, 897 So. 2d 1278, 1280 (Fla. 2005); Gandy v. State, 846 So. 2d 1141, 1143-44 (Fla. 2003); Persaud v. State, 838 So. 2d 529, 532-33 (Fla. 2003); Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986).
[23] Kincaid v. World Ins. Co., 157 So. 2d 517, 518 (Fla. 1963); Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975) (“Our jurisdiction cannot be invoked merely because we might disagree with the decision of the district court nor because we might have made a factual determination if we had been the trier of fact.” (citation omitted)).
[24] Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 517 (2005).
[25] Id.
[26] See, e.g., Spivey v. Battaglia, 258 So. 2d 815, 816-17 (Fla. 1972) (ruling that the lower court had misapplied the standard of law for an intentional tort based on the facts).
[27] See Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1254 (Fla. 2006) (holding that express and direct conflict may be based on the misapplication of a decision). See also Odom v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (Fla. 2018); Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122 (Fla. 2017); Dorsey v. Reider, 139 So. 3d 860 (Fla. 2014); Basulto v. Hialeah Auto., 141 So. 3d 1145 (Fla. 2014); Van v. Schmidt, 122 So. 3d 243 (Fla. 2013); DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013). The Florida Supreme Court in Askew noted in fn. 2 of its opinion several cases in which the court relied on misapplication alone for jurisdiction, such as Rippy v. Shepard, 80 So. 3d 305, 306 (Fla. 2012); Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1087 (Fla. 2013); Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003); Aguilera v. Inservices, Inc., 905 So. 2d 84, 99 (Fla. 2005).
[28] Nancy Ryan, The Misapplication Theory of Express and Direct Conflict Jurisdiction: The Florida Supreme Court Expands Its View of Its Powers, 88 Fla. B. J. 42, 43 (Dec. 2014).
[29] Gibson, 231 So. 2d at 832-33 (Thornal, J., dissenting).
[30] See, e.g., Aguilera, 905 So. 2d at 99 (Wells, J., dissenting).
[31] See, e.g., Wallace v. Dean, 3 So. 3d 1035, 1058 (Fla. 2009) (Polston, J., dissenting).
[32] See, e.g., Harvey v. GEICO Gen. Ins. Co., 259 So. 3d 1, 15 (Fla. 2018) (Canady, J., dissenting).
[33] Anstead, et al., The Operation and Jurisdiction at 519 (“From the case law it appears that all instances of ‘misapplication conflict’ expressly noted in the jurisdictional statement of opinions have involved the misapplication of Supreme Court of Florida decisions, not those of the district courts. The unanswered question is whether ‘misapplication conflict’ of district court decisions even exists.”).
[34] Askew, 365 So. 3d at 1219.
[35] Id.
[36] Id. at 1215.
[37] The petitioner, Christine Askew, as a representative of the Kevin Askew estate, relied on two Florida Supreme Court precedents for the application of misapplication jurisdiction: Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520, 521 (Fla. 1980), and Advanced Chiropractic & Rehabilitation Center Corp. v. United Automobile Insurance Co., 140 So. 3d 529, 534 (Fla. 2014). See Pet’r’s Am. Br. on Jurisdiction at 7.
[38] Askew, 385 So. 3d at 1036.
[39] Id. at 1036-37.
[40] Id. at 1038.
[41] Kartsonis, 319 So. 3d at 623.
[42] Id.
[43] See, e.g., Ripple v. CBS Corp., 385 So. 3d 1021, 1023 n.2 (Fla. 2024) (holding a decision expressly and directly conflicts with another district court where the district courts disagree on statutory damages requirements); Planned Parenthood of Sw. & Cent. Fla. v. State, 384 So. 3d 67, 71 n.1 (Fla. 2024) (holding that a decision of the First District conflicted with prior supreme court precedent to provide jurisdiction); Tomlinson v. State, 369 So. 3d 1142, 1145-46 (Fla. 2023) (holding that a direct conflict existed when one district “reject[ed] the rationale employed” by another district (alteration in original) (quoting Tomlinson v. State, 322 So. 3d 212, 215 (Fla. 3d DCA 2021))).
[44] Statewide Guardian ad Litem Off. v. C.C., 382 So. 3d 614, 616 (Fla. 2024).
[45] Kartsonis, 319 So. 3d at 623 (quoting Nielsen, 117 So. 2d at 734).
[46] See, e.g., Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992) (“Because the court below in the instant case reached the opposite result on controlling facts which, if not virtually identical, more strongly dictated a severance, we concluded that a conflict of decisions existed that warranted accepting jurisdiction.”). But see Cantore v. W. Boca Med. Ctr., Inc., 254 So. 3d 256, 264 (Fla. 2018) (Canady, J., dissenting) (arguing that just a similar issue of law does not rise to the jurisdictional level of substantially similar controlling facts).
[47] Fla. Const. art. V, §3(b)(4).
[48] Fla. R. App. P. 9.330(a)(2)(C).
[49] See, e.g., State v. Creller, 386 So. 3d 487, 489 n.1 (Fla. 2024) (accepting jurisdiction through certified inter-district conflict); Trappman v. State, 384 So. 3d 742, 745 (Fla. 2024) (same); Am. Coastal Ins. Co. v. San Marco Villas Condo. Ass’n, Inc., 379 So. 3d 1099, 1101 (Fla. 2024) (same); Seadler v. Marina Bay Resort Condo. Ass’n, Inc., 376 So. 3d 659, 661 (Fla. 2023) (same); State v. Manago, 375 So. 3d 190, 192 & n.1 (Fla. 2023) (same); Tsuji v. Fleet, 366 So. 3d 1020, 1023 n.1 (Fla. 2023) (same).
[50] See, e.g., State v. Penna, No. 385 So. 3d 595, 597 & n.1 (Fla. 2024) (accepting jurisdiction through certified question of public importance); Faircloth v. Main St. Ent., Inc., 49 Fla. L. Weekly S59 (Fla. Mar. 7, 2024) (same); Emerson v. Lambert, 374 So. 3d 756, 758 & n.3 (Fla. 2023) (same); Ellison v. Willoughby, 373 So. 3d 1117, 1119 & n.1-20 (Fla. 2023) (same).
Jason T. Long is a law clerk in the U.S. District Court for the District of Kansas. He earned a B.A. from Patrick Henry College, an M.A. in Economics from Clemson University, and a J.D. from the George Washington University Law School.
This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, Dimitri Peteves, Sydney Feldman-D’Angelo, and Eleanor Sills, editors.
