The Misapplication Theory of Express and Direct Conflict Jurisdiction: The Florida Supreme Court Expands its View of its Powers
The Florida Supreme Court is a court of limited jurisdiction; it is empowered to hear only those cases that fit the categories set out in Fla. Const. art. V §3(b).1 In some of those categories, its jurisdiction is mandatory, i.e., it both may and must hear appeals in specified subject matter areas.2 In other categories, its jurisdiction is discretionary.3 This article concerns the Florida Supreme Court’s discretionary jurisdiction to review DCA decisions that “express[ly] and direct[ly] conflict” with previous decisions.4 This article does not address the court’s jurisdiction to review decisions when the DCA certifies such conflict pursuant to Fla. Const. art. V §3(b) and Fla. R. App. P. 9.030(a)(2)(A)(vi).
Ever since the district courts of appeal were created in 1956, the Florida Supreme Court has had some form of jurisdiction to resolve legal conflicts that develop in those courts. From 1956 to 1980, Fla. Const. art. V, §3(b)(3) provided for Florida Supreme Court review of DCA decisions when they were “ in direct conflict with a decision of any DCA or of the [S]upreme [C]ourt on the same question of law.”
Initially, in Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958), the Florida Supreme Court announced it would exercise its conflict jurisdiction cautiously. The court in Ansin declined to review a decision of the Third DCA, which affirmed a judgment finding the defendant liable in an attractive-nuisance case. The defendant sought conflict review, arguing that the cases the DCA relied on were factually distinguishable from his case. The court held that the requirement of a direct conflict “clearly evinces a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants,” and quoted Corpus Juris Secundum to the effect that “conflicting decisions” are those that are “based practically on the same set of facts” and which “announce antagonistic conclusions.”5
Shortly afterward, in Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960), the Florida Supreme Court announced a somewhat broader view, construing “direct conflict” as permitting review in two sets of circumstances. The first arises when a DCA announces a rule of law that conflicts with a rule announced by the Florida Supreme Court, and the second arises when a DCA applies a rule of law to produce a different result from the result reached in a previous decision, which involved substantially the same controlling facts.6
the 1970s, the Florida Supreme Court was regularly accepting discretionary conflict jurisdiction on the basis that the DCA decision under review misapplied precedent from the Florida Supreme Court, another DCA, or the same DCA. In Midwest Mutual Insurance Co. v. Santiesteban, 287 So. 2d 665 (Fla. 1973), the court held that the DCA had “misapplied and misconstrued” a Florida Supreme Court precedent by applying it to a case in which one aspect of the operative facts was critically different. In Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972), the Fourth DCA affirmed a judgment awarding a plaintiff damages in a battery case, citing a case from the Second DCA; the Florida Supreme Court took jurisdiction, on the basis that the case from the Second DCA involved intentional harm while the case from the Fourth DCA involved no similar intent. In Wale v. Barnes, 278 So. 2d 601 (Fla. 1973), the court held that the Third DCA had misapplied its own decisions. In that case, the DCA affirmed entry of a directed verdict for a doctor in a medical malpractice case, citing its own precedent; the court took jurisdiction, noting that in Wale, there had been testimony that the doctor’s actions had caused the harm complained of, while in the intradistrict cases cited as precedent, there had been no such testimony.
In light of the “mission creep” reflected in the foregoing cases, Fla. Const. art V, §3(b)(3) was limited by the voters in 1980.7 The new revision allowed for review of only those DCA decisions that “ expressly and directly conflic[t] with a decision of another DCA or of the supreme court on the same question of law.” In post-1980 cases, the Florida Supreme Court construed the new requirement that conflict be “express.” The court immediately determined, in Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981), that the opinion in the case under review need not cite an earlier decision by name in order for conflict with that decision to be present. Instead, the court has required that the DCA must articulate a holding, within the four corners of the majority opinion, which conflicts with a previous decision.8 That requirement is firmly adhered to: The Florida Supreme Court has clearly and consistently held, since 1980, that it has no jurisdiction to review cases in which the DCA affirms without writing any opinion at all, or in which its opinion consists only of a citation to a statute, rule, or case that is not then pending review in the supreme court.9
While it is clear which DCA decisions are supported by a written opinion for jurisdictional purposes, it is not similarly clear which of those written opinions contain “express” conflict. The Florida Supreme Court’s post-1980 jurisprudence — not unlike its pre-1980 jurisprudence — has recognized a growing category of DCA opinions that are said to reflect “express and direct” conflict in that they misapply precedent of the Florida Supreme Court . On isolated occasions in the 1980s and 1990s, the court found express and direct conflict on that theory.10 Between 2000 and 2013, however, the Florida Supreme Court exercised discretionary conflict jurisdiction on the basis that it perceived misapplication of its own precedent no fewer than 15 times.11 On eight of those 15 occasions, dissenting justices wrote that the Florida Supreme Court is extending its constitutionally limited discretionary jurisdiction in an unwarranted matter.12
In Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) , and Knowles v. State, 848 So. 2d 1055 (Fla. 2003), Justice Wells dissented from the court’s grant of jurisdiction, noting on both occasions that the term “misapplication jurisdiction” does not appear in the Florida Constitution. Justices Bell and Cantero concurred in Justice Wells’ dissent in Aguilera.
In four cases in which a majority of the court granted review based on “misapplication jurisdiction” in this century, the dissenting justices opined that there could be no actual conflict between the decisions at issue because the facts of the cases were dissimilar.13 On the first of those occasions, the majority — Justices Lewis, Pariente, Quince, and Anstead — invoked the 1960 decision in Nielsen,14 and wrote that “the attempt of our dissenting colleagues to narrow our recognized conflict jurisdiction to solely encompass decisions involving identical factual scenarios is based upon an unjustified departure from existing precedent, which fails to recognize the first species of conflict jurisdiction identified in Nielsen. ”15 In that 2009 case, and again in 2012 and 2013, Justices Canady and Polston dissented from the decision to grant review because they would find no “misapplication jurisdiction” in the absence of similar fact patterns.16
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. In any case in which discretionary jurisdiction is sought, four justices can determine whether that case will be accepted for review; when jurisdictional briefs are filed in cases in which the DCA does not certify a basis for jurisdiction, those briefs go to a panel of five justices.17 A vote by four justices to deny review is final, as is a vote by four justices to accept review.18 When the five-member panel is more closely divided, a vote by the entire court determines whether the court will take jurisdiction.19
Appellate practitioners should take note of the cases defining “misapplication” jurisdiction. Litigation that continues after a DCA opinion issues may involve one set of deadlines for future action if the Florida Supreme Court lacked jurisdiction over the case, and another if instead the court had discretionary subject-matter jurisdiction but did not exercise it. The supreme court’s subject-matter jurisdiction over conflict cases is broad: It extends to all cases in which the opinion of the DCA establishes any point of law, and, thus, hypothetically could create conflict if another decision reaching a contrary result were to exist.20 In such cases, if the court discerns no actual conflict, the court has subject-matter jurisdiction but declines to exercise it.21
In cases when counsel files a petition seeking discretionary review and the court denies it, deadlines for future action may change depending on whether the court had subject-matter jurisdiction over the case. In criminal cases in which a petition alleging conflict is filed, the judgment of guilt does not become final, for the purpose of computing due dates for post-conviction filings, until the petition is resolved; however, this is only true if the Florida Supreme Court had jurisdiction over the case.22 In civil and criminal cases, the deadline for seeking U.S. Supreme Court review of an unfavorable DCA decision also depends on whether the Florida Supreme Court ever, in fact, had jurisdiction over the case.23 In general, unauthorized petitions do not toll jurisdictional time periods.24
The decision not to seek discretionary review may have consequences as well, if the Florida Supreme Court, in fact, had subject-matter jurisdiction to hear such a petition, at least in criminal cases. The federal courts hold that a prisoner has failed to fully exhaust state court avenues for review of a federal claim, even if the claim was properly raised in the trial court and on direct appeal, if the defendant failed to also raise it in a petition for discretionary review in the state’s supreme court, provided such review is “available” as part of the ordinary appellate review procedure provided by that state.25 Such review is available when the right to raise claims exists, even if the state supreme court rarely grants petitions raising such claims.26 Defense counsel, thus, can only assure that collateral federal review is not foreclosed by seeking Florida Supreme Court review of an adverse DCA decision in every case in which an argument for misapplication jurisdiction exists.
In short, a clear understanding of the outer reaches of the Florida Supreme Court’s discretionary jurisdiction is an indispensable part of appellate practice in Florida.
1 See, e.g., In re Holder, 945 So. 2d 1130, 1133-34 (Fla. 2006).
2 Fla. Const. art. V §3(b)(1), (2).
3 Fla. Const. art. V §3(b)(3)-(9).
4 See Fla. Const. art. V §3(b)(3); Fla. R. App. P. 9.030(a)(2)(A)(iv).
5 Ansin, 101 So. 2d at 811.
6 Nielsen, 117 So. 2d at 734.
7 See Anstead, H.L., et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431 (2005); and Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) (history of the 1980 revision of art. 5 is recounted).
8 Reaves v. State, 485 So. 2d 829 (Fla. 1986).
9 Wells v. State, 2014 WL 148557 (Fla. 2014); Gandy v. State, 846 So. 2d 1141 (Fla. 2003); Persaud v. State, 838 So. 2d 529 (Fla. 2003); Jollie v. State, 405 So. 2d 418 (Fla. 1981); Dodi Publishing Co. v. Editorial America, S.A., 385 So. 2d 1369 (Fla. 1980).
10 Pender v. State, 700 So. 2d 664 (Fla. 1997); Acencio v. State, 497 So. 2d 640 (Fla. 1986); State v. Stacey, 482 So. 2d 1350 (Fla. 1985); Arab Termite and Pest Control of Florida, Inc. v. Jenkins, 409 So. 2d 1039 (Fla. 1982).
11 Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 (Fla. 2013); DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d 85 (Fla. 2013); DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013); Hayes v. State, 94 So. 3d 452 (Fla. 2012); Nordelo v. State, 93 So. 3d 178 (Fla. 2012); Rippy v. Shepard, 80 So. 3d 305 (Fla. 2012); Delgado v. State, 71 So. 3d 54 (Fla. 2011); Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n, Inc., 67 So. 3d 187 (Fla. 2011); Jaimes v. State, 51 So. 3d 445 (Fla. 2010); Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009); Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006); Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005); Knowles v. State, 848 So. 2d 1055 (Fla. 2003); Robertson v. State, 829 So. 2d 901 (Fla. 2002); Vest v. Travelers’ Ins. Co., 753 So. 2d 1270 (Fla. 2000).
12 See Cortez, 123 So. 3d 1085; DelMonico, 116 So. 3d 1205; Rippy, 80 So. 3d 305; Delgado, 71 So. 3d 54; Wallace, 3 So. 3d 1035; Aguilera, 905 So. 2d 84; Knowles, 848 So. 2d 1055; and Robertson, 829 So. 2d 901.
13 See Aguilera, 905 So. 2d 84; Wallace, 3 So. 3d 1035; Rippy, 80 So. 3d 305; and DelMonico, 116 So. 3d 1205.
14 See Fla. Const. art. V §3(b)(1), (2), and accompanying text.
15 Wallace, 3 So. 3d at 1039.
16 Id. at 1055-58; Rippy, 80 So. 3d at 309 n.1; DelMonico, 116 So. 3d at 1221-22.
17 The Supreme Court of Florida Manual of Internal Operating Procedures, §II(B)(1)(b), http://www.floridasupremecourt.org/pub_info/documents/IOPs.pdf .
20 The Florida Star v. B.J.F., 530 So. 2d 286, 289 (Fla. 1988).
21 Id. In cases in which the DCA issues no opinion, or issues an opinion consisting only of a citation, the Florida Supreme Court has no subject-matter jurisdiction. See Wells, 2014 WL 148557; Gandy, 846 So. 2d 1141; Persaud, 838 So. 2d 529; Jollie, 405 So. 2d 418; Dodi Publishing Co. , 385 So. 2d 1369.
22 Beaty v. State, 701 So. 2d 856 (Fla. 1997).
23 The Florida Star, 530 So. 2d at 289 n. 27.
24 Jacksonville Paper Co. v. Nolan, 80 So. 2d 454 (Fla. 1955).
25 O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
26 Smith v. Jones, 256 F. 3d 1135, 1138 (11th Cir. 2001).
Nancy Ryan graduated from the University of Florida (B.A. 1981, J.D. 1988). For the last 21 years she has argued appeals for the Public Defender’s Office in Florida’s Seventh Judicial Circuit.
This column is submitted on behalf of the Appellate Practice Section, Ceci Culpepper Berman, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.