Florida Bar Journal

The People’s Court on Appeal: Three Years of County Court Appeals to the District Courts of Appeal

As the clock approached midnight on December 31, 2020, Floridians looked with hope to a new beginning, leaving behind a turbulent, chaotic era: circuit court appellate review over (most) county court orders. Before 2021, the district courts of appeal (DCAs) only reviewed county court decisions if the county court certified a question of great public importance to the DCA.^[1] Otherwise, a case had to first pass through a circuit court sitting in its appellate capacity, and the losing party would have to file a certiorari petition to the DCA.

Circuit courts were simply not equipped for a high volume of appeals. Appeals languished on busy trial judge desks, with briefs waiting to be read between case management conferences, drafting and signing orders and judgments, discovery and summary judgment motion hearings, the uniform motion calendar, during trial (recesses only), or worse — during Little League games, vacations, late night television, or any other free moment.

Most circuit judges do not have their own designated law clerks or staff attorneys, let alone two (or sometimes three)^[2] like the DCA judges. Each of the 20 circuits had their own approach to handling county court appeals. Some, like the Sixth Judicial Circuit, published circuit court appellate decisions on their website, and still do.^[3] But this was the exception, not the rule, and circuit court opinions were difficult to track down statewide. Others, like the 13th Circuit, created an appellate division with random panel configurations.^[4] As these pages have documented, intra-circuit conflicts were not uncommon and there was no en banc procedure to resolve the conflicts.^[5]

The dark ages are over. By the time this article is published, there will have been three full years of direct DCA review of county courts. This article discusses the highlights from the 700-plus DCA opinions in county court cases published since 2021.

How Did We Get Here?

The legislature amended F.S. §26.012, effective January 1, 2021.^[6] The statute sets forth the circuit court’s jurisdiction. Previously, the statute said, “Circuit courts shall have jurisdiction of appeals from county courts” with certain exceptions that are no longer relevant. With the change, the circuit courts’ only appellate jurisdiction is “of appeals from final administrative orders of local government code enforcement boards and of reviews and appeals as otherwise expressly provided by law.”^[7] There was no statutory change expressly redirecting county court appeals. So where do county court appeals go? By constitutional default, the DCAs have jurisdiction over most county court appeals now that the circuit court’s jurisdiction has been amended.^[8]

Moving Day

When 2021 began, the circuit courts packed up their appellate files and shipped them off to the nearest DCA. The transfer had a particular impact in some cases. In Mallory v. Brinckerhoff, 312 So. 3d 944, 946 (Fla. 4th DCA 2021), the transfer from circuit court was outcome-determinative and saved the appeal from dismissal. Circuit courts did not have jurisdiction to hear the nonfinal appeal in the case, but because the case was transferred to the DCA before a decision, the DCA determined it had jurisdiction and ruled.^[9]

The circuits were, perhaps, overeager to purge their appellate dockets. At least two cases were improperly transferred because the circuit court still had appellate jurisdiction over orders from certain local governmental hearing officers^[10] and civil traffic infractions. The DCAs returned those cases to circuit court.

Two cases were at the DCA on second-tier certiorari from a circuit court appellate panel when the statute changed. In both, the courts quashed the circuit court appellate decision and remanded straight to the county court, not the circuit court.^[11] In another case, the circuit court appellate panel had ruled, but there was a pending motion for rehearing when the case was transferred to the DCA. The DCA granted rehearing, vacated the circuit court’s decision, and remanded to the county court.^[12]

County Criminal on Appeal

On the criminal side, county courts have jurisdiction over “misdemeanor cases not cognizable by the circuit courts.”^[13] By far, driving under the influence (DUI) was the most frequent crime appearing in the opinions. The DUI cases present a potpourri of constitutional and procedural issues raised by both defendants and the state.

DUI defendants raise issues like double jeopardy,^[14] Miranda violations,^[15] confrontation clause challenges to toxicology reports,^[16] prosecutorial golden rule violations,^[17] the right to present exculpatory evidence under the Sixth Amendment,^[18] trial judge disqualification,^[19] Williams rule violations,^[20] and a failure “to consider less extreme sanctions than the exclusion of defense witnesses” for a discovery violation.^[21]

Though rarer, the state has also filed appeals in DUI cases. For its part, the state successfully challenged a trial court order transferring a defendant to veterans court over the state’s objection, which the Fourth DCA held violated separation of powers and the veterans court statutes.^[22] The state prevailed against a trial court’s ruling that a defendant’s emergency room records were protected by the right to privacy enshrined in Fla. Const. art. I, §23.^[23]

The non-DUI misdemeanors on appeal include criminal mischief,^[24] possessing undersized snapper,^[25] resisting arrest without violence,^[26] obstructing an officer without violence (by talking too loudly on the phone on the other side of a door while police interviewed a witness; the court reversed),^[27] simple battery,^[28] leaving the scene of a crash,^[29] trespassing in a school zone,^[30] violation of stalking injunction,^[31] petit theft,^[32] driving while license suspended,^[33] driving a motorized bicycle without a license (or, as the citation described it, a “black Huffy” with a gasoline engine),^[34] a defense attorney held in contempt of court (contempt reversed because the judge had counsel handcuffed and detained before holding a contempt hearing),^[35] and a Chinese tourist arrested for resisting without violence after allegedly trespassing, loitering, and prowling at Mar-A-Lago outside the police’s presence.^[36]

Some cases touch on evidentiary rules. For instance, the undersized-snapper case involved the best evidence rule.^[37] The defendant argued that officer testimony about the size of the fish was insufficient to establish guilt, and “that either the physical snapper or photographs of the snapper be admitted into evidence.”^[38] The Third District rejected the argument and affirmed the conviction, even though the evidence at trial was testimonial only.

Other cases examine police conduct in misdemeanor investigations. In the Mar-A-Lago case, Lu Jing v. State, 316 So. 3d 724 (Fla. 4th DCA 2021), a tourist walked through the open gate and took photographs of then-President Trump’s private resort. She left when waved away by a security guard. Later, police caught up with her, handcuffed her, and took her into custody. Because the trespass and loitering and prowling offenses did not occur in the officer’s presence, the Fourth DCA held that the police did not have the right to make a warrantless arrest under F.S. §901.15(1), so “[a]ppellant was entitled to resist being handcuffed in the non-violent way she did.”^[39]

Judge Artau dissented and would have found that the statute authorized the officer to “temporarily detain” the tourist “for the purpose of ascertaining her identity and investigating the circumstances surrounding her presence on the property of Mar-A-Lago after being advised to leave and warned not to reenter the property.”^[40] Artau would have held that probable cause for resisting without violence attached when “the defendant resisted the officer’s lawful instruction to walk over to his patrol car to complete his investigation.”^[41] Thus, a simple resisting-without-violence charge resulted in two opinions and 13 pages in the Southern Reporter.

Some misdemeanor cases have even broader implications. Corbett v. State, 348 So. 3d 645 (Fla. 5th DCA 2022), was a simple battery case involving the Stand Your Ground (SYG) immunity statute.^[42] The case presented an important appellate concern with consequences beyond simple battery cases — does the defendant challenge the denial of an SYG motion to dismiss through a writ of prohibition (which has no clear deadline for filing)^[43] or certiorari (which must be filed within 30 days of rendition)?^[44] The court’s answer: it depends.

The court distinguished challenges to the procedure in ruling on SYG immunity and challenges to the merits of the SYG ruling. Procedural-only challenges, according to the court, are reviewable by certiorari, while the merits are to be reviewed by prohibition. In Corbett, the court characterized the appellant’s arguments as procedural — that the lower court applied the wrong burden of proof, the wrong standard of review, and incorrectly ruled that the appellant failed to “establish a prima facie claim of immunity.”^[45] The court agreed that the trial court erred but dismissed the petition as an untimely petition for writ of certiorari.

Though the misdemeanor cases involve lower stakes than their felony counterparts, the county courts are making their mark on the state’s criminal and constitutional jurisprudence.

Small Claims Appeals

Small claims court comprises a significant portion of county court dockets and consists of expedited rules applicable to civil actions that do not exceed $8,000 in controversy.^[46] Other than PIP^[47] cases, most small claims cases did not reach the DCA level before the circuit court’s appellate jurisdiction changed in 2021. In most PIP cases, the parties invoke the Florida Rules of Civil Procedure, rather than follow the Small Claims Rules.^[48]

The caselaw on the Small Claims Rules was scant before the statutory change. Perhaps, this is why the Third DCA penned a background explainer on the Small Claims Rules in one of the first published opinions following the appellate jurisdiction change, Morburger v. J. Reporting, Inc., 318 So. 3d 619 (Fla. 3d DCA 2021). The court described the less formal nature of small claims proceedings: “The rules eschew the formality ordinarily associated with civil litigation, creating an open ‘People’s Court’ in which mere technicalities ‘must not obscure the greater purpose of justice for all.’”^[49]

The lack of formality in small claims court often means no court reporter or hearing transcript, creating problems on appeal. For instance, the Second DCA had a small claims case in which both sides were pro se, and the court sought to piece together the lower court proceedings, to no avail: “Having ordered oral argument in the hopes of gaining greater insight into the trial court’s reasoning, we were instead left with a disturbing lack of clarity regarding the proceedings below.”^[50]

One issue addressed after the appellate jurisdiction change: do the offer of judgment statute, F.S. §768.79, and the proposal for settlement rule, Fla. R. Civ. P. 1.442, apply in small claims court if the civil procedure rules — particularly, Rule 1.442 — are not invoked in the proceedings? Yes, according to the Fifth^[51] and Second^[52] DCAs.

The Second DCA addressed the standard of review of a summary disposition order entered under Small Claims Rule 7.135 because there was no reported case establishing it. The court found it similar enough to the summary judgment rule, Rule 1.510 of the Florida Rules of Civil Procedure, and performed a de novo review.^[53]

Some differences between the Small Claims Rules and the Florida Rules of Civil Procedure are critical enough to be outcome-determinative. For instance, in Mote Wellness & Rehab, Inc. v. State Farm Mutual Automobile Insurance Co., 331 So. 3d 191, 193 (Fla. 4th DCA 2021), the trial court applied the six-month timeframe for dismissal for lack of prosecution found in Small Claims Rule 7.110(e), even though the parties had invoked the Florida Rules of Civil Procedure. The Fourth DCA held that because of the invocation, Rule 1.420(e) applied, which carries a 10-month period for record activity before a court can issue a dismissal-for-lack-of-prosecution notice.^[54] There was record activity in the last 10 months, so the dismissal was improper.^[55] The dismissal would have been reversed regardless, however, because the lower court never sent a notice to the parties before dismissing the case, and both Rule 7.110(e) and Rule 1.420(e) require notice before dismissal.^[56]

Too-Small Claims?

In the influx of small claims cases and direct appeals from PIP cases, the DCAs had occasion to address the de minimis doctrine — de minimis non curat lex, or in English, “the law cares not about minimal harms.”^[57]

The Fourth DCA had a case in which the amount in controversy was 14 cents and another for $4.17.^[58] The Fifth DCA had one for $1.48.^[59] Two of the cases contained special concurring opinions in which the judges registered their displeasure with the judicial resources sucked up by these cases.^[60]

Precision Diagnostic, Inc. v. Progressive Am. Ins. Co., 330 So. 3d 32 (Fla. 4th DCA 2021), was the first and largest disputed amount of the de minimis trilogy — $4.17. The court affirmed the trial court’s finding that $4.17 in underpaid interest on a late benefit payment was de minimis, even though the lower court erred in its interpretation of the interest calculation statutes: “A de minimis amount in controversy does not warrant reversal.”^[61] The opinion also clarified the correct method for calculating interest, which was different from the parties’ arguments and the trial court’s method.^[62]
 In Liberty Mutual Ins. Co. v. Pan Am Diagnostic Services, 347 So. 3d 7, 8 (Fla. 4th DCA 2021), the plaintiff sued “because 14 cents of statutory interest was not paid when the Insurance Company paid an overdue personal injury protection (‘PIP’) benefit.”^[63]

Why sue for 14 cents? The court answered in the next sentence: “The pennies worth of unpaid interest eventually resulted in an award of attorneys’ fees and costs to the Provider in the amount of $24,028.27.” The court went to great lengths explaining why interest is not a PIP benefit triggering attorneys’ fees, reversing the fee award.^[64]

Chief Judge Klingensmith, who was also on the panel for Precision Diagnostic, wrote a special concurrence on the de minimis doctrine and took aim at PIP litigation in general: “Florida courts have seen a number of these cases in personal injury protection litigation where litigants go at it, hammer and tongs, over trifling amounts.”^[65]

Klingensmith identified attorneys’ fees as the culprit, noting, “the litigation below was never about the appellee being shorted pocket change,” and “[a]s Judge Levine noted in [Precision Diagnostic v.] Progressive, cases like this (including Alfonso)^[66] are ‘brought painfully for no other justification than the award of attorney’s fees.’”^[67] De minimis was not argued below or on appeal, but if it had been, Chief Judge Klingensmith would have reversed the judgment on de minimis grounds, along with the majority’s ruling that unpaid interest does not trigger attorneys’ fees under the PIP statute because “[w]here a case involves a needless waste of judicial resources, a rejection of an attorneys’ fees award is squarely within the court’s inherent powers to keep in proper condition the legal community and the legal system, of which the courts are a leading part.”^[68]

The Fifth DCA took a different approach. The court held that the plaintiff was entitled to attorneys’ fees for the $1.48 judgment in Baker Family Chiropractic, LLC v. Liberty Mutual Ins. Co., 356 So. 3d 281 (Fla. 5th DCA 2023).

This result was partly because of the unique procedural posture, as this was the second appeal in the litigation. The insurer dismissed its initial appeal from the $1.48 judgment (disputing the method of interest calculation) following the answer brief in that case.^[69] The Fifth DCA entered an order conditionally granting the provider’s motion for appellate attorneys’ fees and returned the case to the trial court for further proceedings.^[70] On remand, the trial court ruled that the provider “was not entitled to any attorneys’ fees at all,” and the provider appealed.^[71]

This time, nobody dismissed the appeal before the court’s decision, in which all three panel members wrote opinions agreeing to reverse the “no fees” ruling and declining to affirm on de minimis grounds.^[72] Judge Edwards wrote the opinion for the court, Judge Evander wrote a special concurrence, and Judge Makar wrote a concurring opinion.^[73]

Judge Edwards’ majority opinion discussed the purpose of the attorneys’ fees provisions in the PIP statutes, which is to “penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the [insurance] company’s power to resolve it.”^[74] The court emphasized that they “fully agree that as a matter of policy, lawsuits should typically not be filed or defended over amounts as trivial as $4.17 or $1.48 or 14 cents.”^[75] But the court decided not to go the de minimis route paved by the Fourth DCA in Precision and Pan Am.

The court declined to engage a philosophical inquiry about “[u]nder what circumstances, at what amount, and for what benefits or penalties are the damages simply too small to deserve judicial consideration and recovery of attorney’s fees?”^[76] These policy considerations, according to the court, are best for the legislature: “While we are free to philosophically disagree with the [l]egislature as to the wisdom or efficacy of awarding attorney’s fees in every PIP dispute, we are not free to ignore or rewrite the aforementioned statutory provisions.”^[77]

The court also noted that “it is not clear who started the fight over $1.48 of interest; however, it is clear that both Baker Chiro and Liberty Mutual chose to continue the battle,”^[78] and that the record did not indicate “whether there were national implications to this dispute, if it was important to Liberty Mutual on a state-wide basis here in Florida, or whether it was trying to make a point with a group of PIP attorneys.”^[79]

Judge Evander picked up the “who started it?” theme in his special concurrence, noting that while lawsuits for de minimis amounts for obtaining attorneys’ fees should be discouraged, if the insurer rejected “a reasonable presuit demand and decided to ‘go to the mat’ over a $1.48 amount, it would be entirely appropriate for Liberty to be required to pay a significant amount of attorney’s fees in this case.”^[80] This is because, “[t]o do otherwise could encourage insurance companies, as a matter of course, to withhold due and owing payments of amounts declared by courts to be de minimis.” But Judge Evander also acknowledged that the remand “will result in the continuation of this unseemly battle.”^[81]

Judge Makar agreed with both opinions but wrote to express his more favorable view of the Fourth DCA’s de minimis cases than the majority opinion espoused: “I am in accord with Chief Judge Klingensmith’s concurrence in Pan Am Diagnostic Services, that cases such as this one, involving meaningless amounts of interest, could be subject to dismissal based on the principle that scarce judicial resources should not be wasted on trifling matters.”^[82]

But Judge Makar pointed out that this case was more complicated because of the “apparent fumbling of the ball by the insurer in not timely paying benefits due and pursuing but dismissing its appeal of the $1.48 judgment, the net effect of which is to expose itself to a potential attorney[s’] fees judgment for litigation about the method by which interest is calculated.” Judge Makar concluded with a nod to the legislature, who “may wish to clarify the relevant statutes to make it unequivocally clear whether attorney[s’] fees are available in disputes over interest under the PIP statutes.”^[83] This would “relieve the substantial and unnecessary burden placed on the judiciary due to cases such as this one.”^[84]

Conclusion

Eliminating circuit court appellate jurisdiction over county courts was a positive development for Florida jurisprudence. Not only does it free up circuit judges to focus on their trial dockets (and not have to coordinate with other busy circuit judges to rule on cases as a panel), but it places appeals in the hands of the DCAs, which are better equipped to develop the law for the state. Because of reported opinions in the de minimis cases, for instance, the legislature has data points reflecting how the PIP statutes work in real life. If litigation over 14 cents is an unintended consequence, the legislature can debate whether and how to fix it and weigh the competing policy considerations.

Because the DCAs establish precedent, even the smallest misdemeanor can affect the law, such as with the simple battery/SYG immunity case and other misdemeanor cases in this article. The legislature got it right when it amended §26.012. Three years later, Florida law is better than it was before.

This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, and Dimitri Peteves, editors.