Opinion
Case No. 5D20-2747
07-09-2021
MARCIN LEWANDOWSKI, P.A., Petitioner, v. Jose FLEMING, Christina Pells and Capital Realty Investments, LLC d/b/a Preferred Real Estate Brokers, Respondents.
Marcin Lewandowski, of Marcin Lewandowski, P.A., Orlando, for Petitioner. Derek J. Angell, of Bell & Roper, P.A., Orlando, for Respondents.
Marcin Lewandowski, of Marcin Lewandowski, P.A., Orlando, for Petitioner.
Derek J. Angell, of Bell & Roper, P.A., Orlando, for Respondents.
LAMBERT, C.J. The petitioner, Marcin Lewandowski, P.A. ("the Firm"), seeks second-tier certiorari relief regarding an order from the Ninth Judicial Circuit Court, sitting in its appellate capacity, that dismissed its petition for writ of prohibition. The Firm had sought to disqualify the county court judge who had been assigned to preside over the civil suit that the Firm had filed against Jose Fleming, Christina Pells, and Capital Realty Investments, LLC d/b/a Preferred Real Estate Brokers ("the Respondents"), regarding a commission that it believed it was owed resulting from a real estate transaction.
The circuit court dismissed the Firm's petition for writ of prohibition, concluding that the petition was now moot because "the trial judge has since been reassigned to a new division and is no longer the presiding judge in the underlying case." The Firm asserts here that this ruling is erroneous and requests that we grant it relief by certiorari. See Sutton v. State , 975 So. 2d 1073, 1078 (Fla. 2008) (holding that a circuit court's order entered in its appellate capacity on a petition for writ of prohibition in connection with the issue of recusal of a county court judge is reviewable by certiorari). While we agree that the circuit court's order determining the Firm's petition for writ of prohibition to be moot was erroneous, we nevertheless deny the petition because the Firm has not shown that the circuit court's order has resulted in a miscarriage of justice.
The Florida Supreme Court has made it clear that for second-tier certiorari, which is certiorari review by a district court of appeal of an order, judgment, or decision of the circuit court sitting in its appellate capacity to review a ruling from either the county court or an administrative or other governmental entity, a party must show that the error committed was so serious that it constitutes a "departure from the essential requirements of law." Nader v. Fla. Dep't of Hwy. Saf. & Motor Veh. , 87 So. 3d 712, 721–22 (Fla. 2012) ; see also Martin Cnty. v. City of Stuart , 736 So. 2d 1264, 1265 (Fla. 4th DCA 1999) (holding that when a district court of appeal reviews by certiorari the decision of a three-judge panel of the circuit court in its appellate capacity, the district court is limited to determining whether there was a lack of procedural due process or a departure from the essential requirements of law (citing Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995) ).
The Firm has not asserted that the circuit court failed to afford it procedural due process.
District courts are cautioned that when addressing the scope of second-tier certiorari review,
[they] should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.
It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. 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.
Combs v. State , 436 So. 2d 93, 95–96 (Fla. 1983) (citations omitted).
Here, the Firm correctly identified, and the Respondents concede, that a petition for writ of prohibition is not rendered moot as a result of a judicial reassignment because, had the petition been granted, then, under current Florida Rule of General Practice and Judicial Administration 2.330(j), the prior factual or legal rulings made by the disqualified judge may be vacated or amended by the successor judge based upon a timely motion for reconsideration. See also Pilkington v. Pilkington , 182 So. 3d 776, 778 (Fla. 5th DCA 2015) ("Thus, the potential for reconsideration if a successor judge were to be appointed means the motion and petition [for writ of prohibition] are not moot.").
This rule previously was Florida Rule of Judicial Administration 2.330(h).
Thus, the issue we must resolve is whether the circuit court's erroneous dismissal of the Firm's petition for writ of prohibition was such a serious legal error so as to cause a miscarriage of justice. To do so, because the allegedly-biased judge is now presiding over a different judicial division, we must address whether any of the orders entered by this judge that could have been vacated by the successor judge had the petition been granted were so seriously flawed that it would be a miscarriage of justice not to grant relief by the issuance of a writ of certiorari.
We take no position as to whether the petition for writ for prohibition should have been granted as it is unnecessary to our disposition of the petition for writ of certiorari now before us.
Our record shows that five orders were entered by the initial judge that could have been subject to reconsideration by a successor judge. The first quashed service of process against one of the Respondents. The county court subsequently acquired jurisdiction over this Respondent. The second order granted two of the Respondents’ motion to dismiss, but the order acknowledged that, by the time of its entry, the Firm had already filed its second amended complaint. The third order was actually favorable to the Firm as it denied the Respondents’ motion to dismiss the second amended complaint and motion for sanctions. The fourth order granted the Respondents’ stipulation for substitution of counsel. The final order denied the Firm's motion filed under section 57.105(1), Florida Statutes (2020), seeking sanctions against the Respondents for bringing the unsuccessful motion to dismiss the Firm's second amended complaint.
We deny the Firm's petition for writ of certiorari. Simply stated, none of these orders entered by the now-reassigned county court judge that were adverse to the Firm, even if somehow erroneous, were of such significance to have resulted in the requisite miscarriage of justice necessary to support the issuance of a second-tier writ of certiorari.
PETITION DENIED.
EVANDER and SASSO, JJ., concur.