holding that petitioner waived its 2 claim of error in second-tier certiorari review where it failed to raise the error as a basis for reversal in its appellate brief to the circuit court acting in an appellate capacity
How later courts described this case
- holding that petitioner waived its 2 claim of error in second-tier certiorari review where it failed to raise the error as a basis for reversal in its appellate brief to the circuit court acting in an appellate capacity
Written by the judges who cited it.
The opinion
Third District Court of Appeal
State of Florida
Opinion filed September 20, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1870
Lower Tribunal No. 21-10 AP
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Cristina Hernandez,
Petitioner,
vs.
City of Miami Code Enforcement Board,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Appellate Division, Lisa S. Walsh, Daryl E. Trawick and Maria de
Jesus Santovenia, Judges.
David J. Winker, P.A., and David J. Winker, for petitioner.
Victoria Méndez, City Attorney, and Kerri L. McNulty, Litigation &
Appeals Division Chief, and Marguerite C. Snyder, Assistant City Attorney,
for respondent.
Before LOGUE, C.J., and EMAS and BOKOR, JJ.
PER CURIAM.
Upon consideration, the petition for second-tier certiorari is denied.
See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla.
2010) (providing:
This Court has continually applied certain
fundamental principles for the use of certiorari to
review decisions rendered by the circuit court acting
in its appellate capacity from the time common-law
certiorari jurisdiction was first recognized in 1855.
See, e.g., Allstate Ins. Co. v. Kaklamanos, 843 So.
2d 885 (Fla. 2003); Ivey v. Allstate Ins. Co., 774 So.
2d 679 (Fla.2000); Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523 (Fla. 1995); Combs v. State, 436 So.
2d 93 (Fla. 1983); Halliday v. Jacksonville & Alligator
Plank Rd. Co., 6 Fla. 304 (1855). We have
consistently observed that “as a case travels up the
judicial ladder, review should consistently become
narrower, not broader.” Haines, 658 So. 2d at 530.
Therefore, when a district court considers a petition
for second-tier certiorari review, the “inquiry is limited
to whether the circuit court afforded procedural due
process an whether the circuit court applied the
correct law,” or, as otherwise stated, departed from
the essential requirements of law. Id.; see also
Kaklamanos, 843 So. 2d at 889–90. The departure
from the essential requirements of the law necessary
for granting a writ of certiorari is something more than
a simple legal error. See Kaklamanos, 843 So. 2d at
889 (citing Ivey, 774 So. 2d at 682). Rather, a district
court should exercise its discretion to grant review
only when the lower tribunal has violated a clearly
established principle of law resulting in a miscarriage
of justice.) (footnote omitted).
See also Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co.,
103 So. 3d 866, 869 (Fla. 4th DCA 2012) (holding that petitioner waived its
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claim of error in second-tier certiorari review where it failed to raise the error
as a basis for reversal in its appellate brief to the circuit court acting in an
appellate capacity); Detournay v. City of Coral Gables, 127 So. 3d 869, 873
(Fla. 3d DCA 2013) (reaffirming that “the City's discretion to file, prosecute,
abate, settle, or voluntarily dismiss a building and zoning enforcement action
is analogous to a prosecutor's discretion to file, prosecute, abate, settle, or
dismiss a criminal or civil lawsuit. The prosecutor's discretion in this regard
is a pure executive function that cannot be supervised by the courts, absent
the violation of a specific constitutional provision or law”) (citing Trianon Park
Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 922 (Fla.1985)).
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