Third District Court of Appeal 

State of Florida 

Opinion filed November 29, 2017. 

This Opinion is not final until disposition of any further motion 

for rehearing and/or motion for rehearing en banc. 

Any previously-filed motion for rehearing en banc is deemed moot.

________________ 

No. 3D16-38 

Lower Tribunal No. 13-461 

________________ 

Allstate Fire and Casualty Insurance Company, 

Petitioner, 

vs. 

Hallandale Open MRI, LLC, a/a/o Alexia Blake,

Respondent. 

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade 

County, Appellate Division, Jacqueline Hogan Scola, Jorge Cueto, and Ariana 

Fajardo Orshan, Judges. 

 Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm 

(Tampa); Cozen O’Connor, and Peter J. Valeta (Chicago, IL), for petitioner. 

Marlene S. Reiss, for respondent. 

 

Before SALTER, LOGUE and SCALES, JJ. 
2

SALTER, J.

On Motions for Rehearing and for Certification

On consideration of the respondent’s motion for rehearing and motion to 

certify questions of great public importance, and the response, we withdraw our 

opinion in this case issued April 19, 2017,

1 and replace it with the opinion which 

follows.

I. The Underlying Legal Issue and Final County Court Judgment

This case involves a dispute between Allstate Fire and Casualty Insurance 

Company (“Allstate”) and a medical provider (Hallandale Open MRI, or 

“Hallandale”) regarding a single legal issue: whether a personal injury protection 

(“PIP”) automobile insurance policy issued by Allstate contains language 

sufficiently specific to limit provider reimbursements to 80% of the maximum 

charges described in section 627.736(5)(a)2.f., Florida Statutes (2013). The issue 

arose in the Miami-Dade County Court, based on stipulated facts pertaining to the 

policy and the medical services provided by Hallandale. In October 2013—a time 

when this Court had not ruled on the specific legal issue presented to the County 

Court—the County Court issued a directed verdict for Hallandale (determining that 

 1 Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly 

D893 (Fla. 3d DCA Apr. 19, 2017).
3

the Allstate policy language was insufficiently specific to invoke the statutory 

limitations on payment) and entered final judgment for Hallandale in the amount of 

$407.26, plus prejudgment interest.

II. Allstate’s Appeal to the Circuit Court Appellate Division

Allstate appealed to the appellate division of the Miami-Dade Circuit Court. 

Allstate did not seek a stay pending review, and Hallandale did not seek execution 

or other enforcement of the County Court judgment. In December 2015, the threejudge Circuit Court appellate division panel affirmed the final judgment against 

Allstate. The five-page opinion affirming the County Court judgment surveyed 

pertinent case law from the Florida Supreme Court and several of Florida’s District 

Courts of Appeal.

In Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So. 3d 

147, 159 (Fla. 2013), the Florida Supreme Court held that PIP insurers were required 

to notify insureds by specifically electing the limitations in the Medicare fee 

schedules in order to apply them to medical reimbursement claims. The appellate 

division then observed that the First and Fourth District Courts of Appeal had issued 

conflicting decisions regarding the sufficiency of such notice, in Allstate Fire & 

Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1 (Fla. 1st 

DCA 2015) (policy provided legally sufficient notice), and Orthopedic Specialists 
4

v. Allstate Insurance Co., 177 So. 3d 19 (Fla. 4th DCA 2015) (identical policy 

language not legally sufficient). The appellate division also noted that this Court 

had not issued a controlling decision on the issue.

After surveying the reported decisions, the Circuit Court appellate division 

found the policy language insufficient to support the statutory limitation computed 

using the Medicare fee schedules and, as already noted, affirmed the County Court 

final judgment in favor of Hallandale. In early 2016, Allstate filed a petition seeking 

second-tier certiorari from the appellate division decision. Allstate’s petition cited 

four Miami-Dade Circuit Court appellate division opinions that directly conflicted 

with the appellate division decision (and on the specific, controlling legal issue 

within the decision) involved in the present case.2

 

Hallandale opposed the second-tier petition on jurisdictional and substantive 

grounds. Allstate did not seek a stay of enforcement of the County Court’s 

 2 Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr., Inc. a/a/o Mondy, 21 Fla. 

L. Weekly Supp. 627a (Fla. 11th Cir. Ct. April 3, 2014); Allstate Fire & Cas. Ins. 

Co. v. Hallandale Open MRI LLC a/a/o Politesse, 21 Fla. L. Weekly Supp. 989a 

(Fla. 11th Cir. Ct. June 23, 2014); Allstate Prop. & Cas. Co. v. Royal Diagnostic

Ctr., Inc. a/a/o Leon, 22 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. January 29, 

2015); and Allstate Indem. Co. v. Gables Ins. Recov., Inc. a/a/o Jimenez, 22 Fla. L. 

Weekly Supp. 1146a (Fla. 11th Cir. Ct. June 8, 2015).
5

judgment, nor did Hallandale seek to enforce the judgment, while the petition was 

pending.

III. Florida Supreme Court Accepts Review of the Conflict Cases from the 

First and Fourth Districts

On January 20, 2016, the Florida Supreme Court accepted jurisdiction to 

review the two 2015 District Court of Appeal conflict cases from the First and Fourth 

Districts, Stand-Up MRI and Orthopedic Specialists, cited above. Allstate Ins. Co. 

v. Orthopedic Specialists, No. SC15-2298 (Fla. Jan. 20, 2016) (accepting 

jurisdiction). A decision resolving the conflict issue was issued in January 2017

(discussed further below). Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 

973 (Fla. 2017).

IV. An Intervening Decision by This Court on the Conflict Issue

 While the petition for second-tier certiorari was pending in this Court and the 

conflict case was pending in the Florida Supreme Court, a panel of this Court issued 

a decision on the same issue, as certified by the Miami-Dade County Court for direct 

review under Florida Rule of Appellate Procedure 9.030(b)(4)(A) (discretionary 

review of an order certified by the county court to be of great public importance). 

Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d 

DCA 2016) (holding that the Allstate policy language was clear and unambiguous, 
6

as determined by the First District in Stand-Up MRI). That decision, issued in July 

2016, also certified conflict with the Fourth District opinion in Orthopedic 

Specialists.

IV. This Court’s Dismissal of Allstate’s Petition

Two months after this Court’s opinion deciding the conflict issue, but while 

the conflict was still pending before the Florida Supreme Court, we dismissed 

Allstate’s petition for lack of jurisdiction. Judge Logue dissented in an opinion 

which stressed the importance of exercising jurisdiction when the County Court and 

Circuit Court appellate division decisions on an issue are conflicting, and 

particularly when the District Court for that district has issued an opinion resolving 

the conflict. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 208 So. 

3d 741 (Fla. 3d DCA 2016). Applying Florida Supreme Court case law limiting our 

exercise of second-tier certiorari jurisdiction, particularly Custer Medical Center v. 

United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010), and Allstate 

Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), we concluded that the 

Circuit Court appellate division panel had not violated any clearly established 

principle of law resulting in a miscarriage of justice. Custer, 62 So. 3d at 1092.

Although this Court had by then decided the conflict issue in favor of 

Allstate’s position, the Florida Supreme Court had not yet ruled on the conflict at 
7

that time, and we observed that the Circuit Court appellate division did not have our 

decision before it when it ruled at the end of 2015.

V. Allstate’s Motion for Rehearing; the Supreme Court’s Opinion

In November 2016, Allstate moved for rehearing and rehearing en banc 

regarding our dismissal opinion, contending that we had jurisdiction to consider the 

petition for second-tier certiorari and that our own decision on the merits of the 

conflict issue required us to quash the Circuit Court appellate division’s decision. 

While those motions were being briefed and considered, the Florida Supreme Court 

issued its decision on the conflict issue, Allstate Insurance Co. v. Orthopedic 

Specialists, 212 So. 3d 973 (Fla. 2017). That decision concluded that Allstate’s 

policy language on reimbursement limitations under the PIP statute was legally 

sufficient and not ambiguous, a decision consistent with this Court’s panel decision 

in Florida Wellness a few months earlier, and contrary to the Circuit Court appellate 

division opinion under consideration in the present case.

Had the Florida Supreme Court’s opinion on the conflict issue or this Court’s 

opinion on that issue been available to the Circuit Court appellate division as it 

considered the question in late 2015, the appellate division panel would have been 

duty bound to follow either of those decisions. Given the continued, apparent 
8

willingness of Allstate and Hallandale3 to continue the proceedings in the present 

case, however, we initially concluded that the Florida Supreme Court’s resolution of 

the conflict issue in January 2017 compelled a new analysis and different result.

Allstate’s motion for rehearing, supplemented by the Supreme Court opinion 

in its favor, persuaded a majority of this panel that we should take jurisdiction of the 

petition for second-tier certiorari, apply that decision to the same issue presented in 

the petition, and quash the December 2015 Circuit Court appellate division decision 

in favor of Hallandale. We granted Allstate’s motion for rehearing, exercised 

jurisdiction, and applied Orthopedic Specialists as proposed by Allstate. Allstate 

Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly D893 (Fla. 

3d DCA Apr. 19, 2017).4

In a vigorous dissent, Judge Scales focused on the retroactive effect of such a 

result and the absence of error in the appellate division’s decision at the time it 

considered the case and issued its opinion:

 3 Hallandale took no action to collect the judgment, or to compel Allstate to post a 

supersedeas bond, throughout this process.

4 In a concurring opinion, Judge Logue maintained his position that this Court had 

jurisdiction to resolve the conflict in reported decisions of the Miami-Dade Circuit 

Court appellate division from the outset, and that the initial dismissal of the petition 

for second-tier certiorari was incorrect.
9

Employing a de novo standard of review, the circuit court’s appellate 

division relied upon the appropriate precedent to affirm the trial court’s 

construction of Allstate’s insurance policy. The appellate court’s only 

“error” was failing to accurately predict which of two persuasive, yet 

competing, precedents the Florida Supreme Court ultimately would 

adopt.

Id. at D897 (Scales, J., dissenting).

VI. Hallandale’s Motion for Rehearing and Certification

Hallandale then moved for rehearing, rehearing en banc, and certification of 

two questions of great public importance5 to the Florida Supreme Court:

DOES A DISTRICT COURT’S SECOND-TIER CERTIORARI 

JURISDICTION EXTEND TO REVIEW A CIRCUIT APPELLATE 

COURT’S DECISION THAT DOES NOT CONSTITUTE A 

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF 

LAW, BUT RATHER CHOSE BETWEEN TWO NON-BINDING 

DISTRICT COURT DECISIONS IN THE ABSENCE OF A 

BINDING DECISION FROM THE DISTRICT IN WHICH THE 

CIRCUIT COURT SITS?

CAN A FLORIDA SUPREME COURT DECISION BE APPLIED 

RETROACTIVELY TO A CIRCUIT COURT APPELLATE 

DECISION THAT BECAME FINAL, AND WHICH DOES NOT 

DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW, 

PRIOR TO THE FLORIDA SUPREME COURT’S ISSUANCE OF 

ITS DECISION?

In these motions, Hallandale emphasized that the present case is not a 

“pipeline” case or one in which the county court judgment is anything other than a 

 5 Fla. R. App. P. 9.030(a)(2)(A)(v).
10

final judgment. “In short, as the dissent eloquently recognizes, retroactive 

application of the Florida Supreme Court’s decision to a case that already has 

reached its appellate finality is simply not supported by the law.” Respondent 

Hallandale’s Mot. For Reh’g, etc., 5 (May 4, 2017). Upon consideration of the 

motions and Allstate’s response, a majority of the panel has concluded that 

Hallandale’s arguments are well taken.

VII. Conclusion

For these reasons, on rehearing we dismiss Allstate’s petition for certiorari 

taken from the decision of the Circuit Court appellate division for lack of 

jurisdiction.6

 Our colleague’s dissenting opinion makes the important argument that 

second-tier certiorari jurisdiction should extend to pending intra-district appellate 

division conflict cases for the same reason that the district courts may hear appeals 

en banc, and for the same reason that the Florida Supreme Court exercises 

jurisdiction to resolve conflicting decisions among the district courts. 

On the motion for certification of questions of great public importance, we 

certify a single, rephrased question as follows:

DOES A DISTRICT COURT OF APPEAL HAVE JURISDICTION 

TO GRANT A PETITION FOR SECOND-TIER CERTIORARI IN A 

CASE IN WHICH THERE IS DIRECT CONFLICT ON A 

 6 Under this Court’s Internal Operating Procedures, the issuance of this opinion on 

rehearing is deemed a denial as moot of Hallandale’s motion for rehearing en banc.
11

DETERMINATIVE ISSUE AS BETWEEN (A) THE CIRCUIT 

COURT APPELLATE DIVISION CASE WHICH IS THE SUBJECT 

OF THE SECOND-TIER PETITION, AND (B) A DECISION BY A 

DIFFERENT CIRCUIT COURT APPELLATE DIVISION PANEL 

WITHIN THE SAME DISTRICT, WHEN EACH OF THE 

CONFLICTING DECISIONS WAS RENDERED IN THE ABSENCE 

OF A CONTROLLING DECISION BY THE DISTRICT COURT 

FOR THAT DISTRICT?

Motion for rehearing granted; petition dismissed; question certified to the 

Florida Supreme Court as a question of great public importance.

SCALES, J., concurs.
12

Allstate Fire & Casualty Insurance Company vs. Hallandale Open MRI, LLC

Case No. 3D16-38

LOGUE, J., concurring in part and dissenting in part.

I fully concur that the question presented by the facts of this case be certified 

to the Florida Supreme Court as one of great public importance.

As this case illustrates, circuit court judges sitting in an appellate capacity will 

often issue rulings that conflict with the appellate rulings of other circuit court judges 

in the same circuit. Thus, as happened here, a person filing in county court and 

appealing to the circuit court obtains a result completely at odds with the result 

obtained by a different person filing in the exact same county court and appealing to 

the exact same circuit court.7

 Because there are no further appeals as of right, a 

litigant wins or loses based upon the predilections of the individual judges who heard 

the trial and appeal and not upon a coherent body of law that applies to all litigants. 

Here, this failure in the system is particularly unfortunate because the decision under 

review is contrary to a recent decision of the Florida Supreme Court.8 The question 

 7 Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla. L. 

Weekly Supp. 683, 684 (Fla. 11th Cir. Ct. Dec. 7, 2015) (listing conflicting cases 

and noting “[w]e respectfully disagree with our colleagues”).

8

 The decision conflicts with the subsequently decided case of Allstate Insurance

Co. v. Orthopedic Specialists, 212 So. 3d 973, 974 (Fla. 2017).
13

certified by the majority properly provides the Florida Supreme Court a platform to 

decide whether and how to address this problem. 

Where I respectfully disagree with my brothers in the majority is that I believe 

an incorrect circuit court appellate decision in these circumstances – an incorrect 

legal decision that treats litigants differently than the same circuit court treated other 

similarly situated litigants – constitutes a departure from the most essential 

requirement of law: equality before the law. It results in exactly the type of 

miscarriage of justice without other remedy which certiorari exists to correct. 

In reaching a contrary result, the majority’s analysis is both logical and 

principled. But I give greater weight to the defining characteristic of common law 

certiorari whereby “the district courts must be allowed a large degree of discretion” 

to identify “legal errors serious enough to constitute a departure from the essential 

requirements of law.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 

So. 3d 712, 722 (Fla. 2012) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 

523, 528 (Fla. 1995)). “It is this discretion which is the essential distinction between 

review by appeal and review by common-law certiorari.” Id. at 722 (quoting Combs 

v. State, 436 So. 2d 93, 95-96 (Fla. 1983)).

I also believe the majority errs by looking solely from the perspective of the 

circuit court judges who made the incorrect appellate decision under review to 
14

decide whether the incorrect decision departs from the essential requirements of law. 

Nader teaches that district courts of appeal must lift their vision when applying 

certiorari and also consider the need to facilitate Supreme Court review to ensure a 

clear body of binding precedent that treats all litigants properly and equally. Nader, 

87 So. 3d at 724-25 (approving the district court’s finding of a departure from the 

essential requirements of law based in part on the “dramatic ramifications” of 

refusing further review by way of certiorari).

My position can be summarized as follows: (1) a defect in our court system 

currently prevents the establishment of clearly established principles of law 

governing a wide array of county court issues; (2) Florida courts historically issued 

writs of certiorari to review conflicts among lower appellate decisions; (3) issuing a 

writ of certiorari to resolve a conflict among circuit court decisions is not a second 

appeal because the review focuses on clarifying the law and not the outcome for the 

litigants; and (4) the current standard for second-tier certiorari permits review to 

resolve conflicts in lower appellate decisions.

ANALYSIS

(1) A defect in our court system prevents the establishment of clearly 

established principles of law governing a wide array of county court 

issues.

A properly functioning system of appellate courts will necessarily produce 

conflicting decisions. And a properly functioning system of appellate courts will 
15

necessarily have a method to resolve those conflicts. For example, the Florida 

Supreme Court resolves conflicts that arise among the district courts of appeal. Art. 

V, § 3(b)(3), Fla. Const. Of course, the district courts are not the only appellate courts 

in Florida. The circuit courts serve as appellate courts when reviewing orders of the 

county courts and local governments. Art. V, § 5(b), Fla. Const.; § 26.012(1), Fla. 

Stat. (2016). Just as the Florida Supreme Court resolves conflicts among the district 

courts of appeal, the district courts should similarly resolve conflicts among the 

circuit courts acting in their appellate capacity. But this is not happening.

It is a well-known, but little-discussed defect in our court system that litigants 

in the county courts often have their cases decided based upon conflicting circuit 

court appellate decisions. As occurred in the case below, litigants in the exact same 

circumstances filing in the exact same county court receive different outcomes based 

on conflicting case law. The instant case is only a recent example. 

Twenty years ago, this defect was identified by the Second District in an 

opinion written by Judge Altenbernd. As a result of this “significant problem within 

our existing judicial structure,” Judge Altenbernd wrote, referring to the confused 

and conflicting precedents governing county courts, “there may never be ‘clearly 

established principles of law’ governing a wide array of county court issues, 

including PIP issues.” Stilson v. Allstate Ins. Co., 692 So. 2d 979, 982 (Fla. 2d DCA 
16

1997). The Supreme Court of Florida agreed and adopted Judge Altenbernd’s 

language in full in Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000) (quoting 

Stilson, 692 So. 2d at 982).

The idea that “there may never be ‘clearly established principles of law’ 

governing a wide array of county court issues” contradicts an essential limitation to 

judicial discretion—that “[d]ifferent results reached from substantially the same 

facts comport with neither logic nor reasonableness.” Canakaris v. Canakaris, 382 

So. 2d 1197, 1203 (Fla. 1980). Accepting this idea would constitute a fundamental 

breakdown in the hierarchal system of our appellate courts, which is designed 

precisely to prevent different results reached from substantially the same facts. Id. 

(2) Florida Courts historically issued writs of certiorari to review 

conflicts in lower appellate decisions.

Not only does the United States Supreme Court routinely issue writs of 

certiorari to review conflict, but the Florida Supreme Court also historically issued 

writs of certiorari to review conflict.

In Lake v. Lake, 103 So. 2d 639, 643 (Fla. 1958), for example, the Florida 

Supreme Court expressly acknowledged that it could issue a writ of certiorari under 

article V, section 4(2), of the Florida Constitution (1957) to resolve a conflict on the 

face of a district court opinion:
17

If in a particular case an opinion is rendered by a district court of appeal 

that prima facie conflicts with a decision of another district court of 

appeal or of the Supreme Court on the same point of law, the writ of 

certiorari may issue and, after study, may be discharged, or the decision 

of the district court of appeal may be quashed or modified to the end 

that any conflict may be reconciled.

Lake, 103 So. 2d at 643 (emphasis added). See also Foley v. Weaver Drugs, Inc., 

177 So. 2d 221, 225 (Fla. 1965) (holding that the Florida Supreme Court “may 

review by conflict certiorari a per curiam judgment of affirmance without opinion 

where an examination of the record proper discloses that the legal effect of such per 

curiam affirmance is to create conflict with a decision of this court or another district 

court of appeal”); Gibson v. Maloney, 231 So. 2d 823, 824 (Fla. 1970) (“It is conflict 

of Decisions, not conflict of Opinions or reasons that supplies jurisdiction for review 

by certiorari.”). While these decisions were abrogated by the subsequent 

amendments to the constitution which removed all certiorari jurisdiction from the 

Florida Supreme Court,9 they illustrate how conflict certiorari has been part of our 

constitutional history.10

 9 The holdings of these cases were abrogated by the 1980 Amendments to article V, 

section 3(b)(3), of the Florida Constitution. See, e.g., Jenkins v. State, 385 So. 2d 

1356, 1359 (Fla. 1980).

10 Some may argue that these cases involved “constitutional certiorari” under 

constitutional provisions that expressly authorized the Supreme Court to review 

conflict by certiorari. Art. V, §4(2), Fla. Const. (1957) (“The Supreme Court may 

review by certiorari any decision of a district court of appeal . . . that is in direct 
18

It should come as no surprise that certiorari is flexible enough to review 

conflicts. In the appropriate context, certiorari is flexible enough to provide a fullblown appeal of right. In De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957), the 

Supreme Court concluded that a party to an administrative proceeding was entitled 

to an appeal as a matter of right because the proceeding was quasi-judicial in nature. 

No statute provided the means for appeal, however, so the Florida Supreme Court 

held that the proper vehicle to provide the missing plenary appeal was the circuit 

court’s discretion to issue a common law writ of certiorari. Id. at 915-16 (“The writ 

is available to obtain review in such situations when no other method of appeal is 

available.”).

 

conflict with a decision of another district court of appeal or of the Supreme Court 

on the same point of law.”). This “constitutional certiorari,” it may be argued, 

provides an expanded form of certiorari including a broader type of review than that 

provided by the “common law certiorari” that the current constitution provides to 

district courts of appeal.

This argument conflicts with other case law. While there may be differences 

between “constitutional certiorari” and “common law certiorari,” the language in the 

constitution as of 1957 providing for the issuance of certiorari based on conflict is a 

type of certiorari that is more restrictive – not more expansive – than common law 

certiorari. The drafters granted the Florida Supreme Court the discretion to issue the 

writ – not in general – but only in certain limited circumstances including conflict. 

This is the only explanation that reconciles the Lake line of cases with the Supreme 

Court’s contemporaneous decision in De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 

1957) discussed later in this opinion.
19

In subsequent decisions, the Florida Supreme Court made clear that this use 

of common law certiorari was not subject to the restrictive standard often associated 

with common law certiorari in other contexts: “[a]lthough termed ‘certiorari’ review, 

review at this level is not discretionary but rather is a matter of right and is akin in 

many respects to a plenary appeal.” Fla. Power & Light Co. v. City of Dania, 761 

So. 2d 1089, 1092 (Fla. 2000). The Florida Supreme Court subsequently codified 

the De Groot line of cases in Rule 9.100(c)(2) of the Florida Rules of Appellate 

Procedure where it remains today. Indeed, common law certiorari has provided a

plenary appeal as of right in other circumstances as well.11

Just as common law certiorari can be used to provide a required but missing 

plenary appeal as explained in De Groot, it can be used to provide a less-than-plenary 

review based on an express conflict when necessary to avoid the current situation in 

which “there may never be ‘clearly established principles of law’ governing a wide 

array of county court issues.”

 11 For example, certiorari as an appeal of right is available to obtain first-tier 

appellate review of a circuit court appellate decision to award attorney’s fees or 

disqualify counsel. See, e.g., City of Miami Beach v. Deutzman, 180 So. 3d 245, 

245-46 (Fla. 3d DCA 2015) (“The order was the first ruling on the question of 

attorneys’ fees. Properly viewed, our proceeding is not the second, but rather the 

first tier of appellate review.”).
20

(3) Issuing a writ of certiorari to resolve a conflict in circuit court 

appellate decisions is not a second appeal because the review 

focuses on clarifying the law and not the outcome for the litigants.

The main objection to granting certiorari to review a conflict is that it may 

allow a “second appeal.” See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 

1086, 1092-93 (Fla. 2010). But as the Florida Supreme Court explained in Lake, the 

grant of certiorari to resolve a conflict is not a second appeal because the focus is no 

longer on resolving the dispute between the parties but instead on resolving the 

conflict in the law.

In Lake, the Supreme Court emphasized the importance of not granting a 

second appeal, which is both wasteful and abusive: “[w]hen a party wins in the trial 

court he must be prepared to face his opponent in the appellate court, but if he 

succeeds there, he should not be compelled the second time to undergo the expense 

and delay of another review.” Lake, 103 So. 2d at 642. A party, the Court concluded, 

“is not entitled to two appeals.” Id. But the Court in Lake further explained that 

issuing a writ of certiorari to resolve a conflict is not a second appeal because such 

review “deal[s] with matters of concern beyond the interests of the immediate 

litigants.” Id. When granting certiorari to resolve a conflict between appellate 

decisions, “at this late day in the progress of the litigation the standardization of 
21

decisions on the same point of law will have become primary, the effect upon the 

immediate litigants consequential.” Id. at 643.

Perhaps the most-cited reason why second-tier certiorari cannot be allowed to 

become a second appeal is that doing so would afford a litigant in the county court 

(which is a trial court of limited jurisdiction) more appeals than a litigant in the 

circuit court (which is a trial court of general jurisdiction).12 But issuing the writ to

resolve conflict does not give a county court litigant more appellate opportunities 

than the circuit court litigant because the circuit court litigant has the right to seek 

further review if the district court’s review of its case leads to an opinion that

conflicts with the decision of another district. 

The issuance of a writ of certiorari by a district court to resolve conflicts in 

circuit court appellate decisions is no more the granting of a second appeal than the 

Supreme Court’s exercise of conflict jurisdiction to resolve conflicts among district 

 12 “The policy behind this rule is simple. . . . If, in cases originating in courts inferior 

to the circuit courts, another appeal from the circuit court is afforded in the guise of 

certiorari, then a litigant will have two appeals from the court of limited jurisdiction, 

while a litigant would be limited to only one appeal in cases originating in the trial 

court of general jurisdiction.” Heggs, 658 So. 2d at 526 n.4; see, e.g., Custer, 62 So. 

3d at 1093 (“A more expansive review would also afford a litigant two appeals from 

a court of limited jurisdiction, while limiting a litigant to only one appeal in cases 

originating in a trial court of general jurisdiction.”). 
22

court decisions. Far from being a usurpation of the district court’s jurisdiction and 

prerogative as a final appellate court, conflict certiorari is a proper and necessary 

adjunct to it. Thus, granting a petition for writ of certiorari to resolve conflicts does 

not equate to granting a second appeal. 

(4) The current standard for second-tier certiorari allows review to 

resolve conflicts in lower appellate decisions.

Finally, I believe the current standard for second-tier certiorari includes 

discretionary review to quash incorrect decisions that conflict with other circuit court 

appellate opinions in the same circuit and district. The standard for second-tier 

certiorari is whether the circuit court’s decision denies procedural due process or 

departs from the essential requirements of law resulting in a miscarriage of justice. 

Custer, 62 So. 3d at 1092. While a court considering issuing the writ must “not usurp 

the authority of the trial judge or the role of any other appellate remedy, [it must] 

preserve the function of this great writ of review as a ‘backstop’ to correct grievous 

errors that, for a variety of reasons, are not otherwise effectively subject to review.” 

Custer, 62 So. 3d at 1092 (quoting Heggs, 658 So. 2d at 531 n.14). “Thus, the district 

court’s exercise of its discretionary certiorari jurisdiction should ‘depend on the 

court’s assessment of the gravity of the error and the adequacy of other relief.’” 

Custer, 62 So. 3d at 1092 (quoting Heggs, 658 So. 2d at 531 n.14). 
23

The analysis concerning the gravity of the error cannot be reduced to a 

mechanical formula. The Supreme Court has explained that it is impossible to create 

an exhaustive list of the sort of egregious errors encompassed by second tier 

certiorari. Instead, “the district courts must be allowed a large degree of discretion” 

to identify “legal errors serious enough to constitute a departure from the essential 

requirements of law.” Nader, 87 So. 3d at 722 (quoting Heggs, 658 So. 2d at 528). 

This “discretion and flexibility” is necessary because “a reviewing court is drawing 

new lines and setting judicial policy as it individually determines those errors 

sufficiently egregious or fundamental to merit the extra review and safeguard 

provided by certiorari.” Id. at 723. “It is this discretion which is the essential 

distinction between review by appeal and review by common-law certiorari.” Id. at 

722 (quoting Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983)). 

Applying this discretion to identify errors sufficiently egregious to constitute 

a departure from the essential requirements of law, it is hard to imagine a more 

grievous error than to allow identical cases in the same county court to be decided 

differently based upon conflicting appellate decisions and to have identical appeals 

to the same circuit court be decided differently based upon conflicting circuit court 

appellate decisions. Moreover, as occurred here, because there is no process for 

further appeals, county court judges subsequently faced with similar issues are often 
24

left to choose which of the conflicting circuit court appellate decisions they will 

follow in a particular case. Leaving the outcome of a person’s lawsuit to the 

predilection of individual judges, rather than to a coherent body of law that applies 

across the board to other persons filing lawsuits in the same court, constitutes a 

miscarriage of justice reflecting a departure from the most essential requirement of 

law: equality before the law.

The only reason we have appellate courts is to prevent exactly this sort of 

injustice. An appellate system that fails to prevent such an injustice is not fulfilling 

its purpose. The existence of this problem undermines the credibility of the appellate 

courts in the eyes of the general public. Conflicting results with identical facts look 

at best like judicial whimsy, at worst judicial tyranny. The dramatic and widereaching ramifications of the failure to allow review to resolve conflicts and thus by 

omission to cause identically situated litigants to receive conflicting outcomes is 

“sufficiently egregious or fundamental to merit the extra review and safeguard 

provided by certiorari.” Nader, 87 So. 3d at 727 (quotation omitted).

In this regard, I believe the majority errs when it uses only the perspective of 

the circuit court judges who made the decision under review to determine whether 

their incorrect decision was a departure from the essential requirements of law. The 

Supreme Court in Nader clearly rejected such a mechanical approach.
25

In Nader, the Supreme Court upheld the Second District Court of Appeal’s 

issuance of a writ of certiorari quashing a circuit court appellate decision. The circuit 

court appellate decision under review in Nader followed the decision of another 

district court which was the only decision on point at the time. Id at 725. Looking 

from the perspective of the circuit court judges who made the decision under review, 

the circuit court judges clearly did not depart from the essential requirements of law 

because they were only doing what they were bound by law to do – obeying 

controlling precedent by following the only district court precedent on point. Id. 

Nevertheless, the Supreme Court approved the issuance of a writ of certiorari to 

quash their decision. The Supreme Court did so by giving weight, not just to error 

from the perspective of the circuit court judges, but also to the “wide-reaching 

ramifications” of failing to provide for further review. In particular, the Supreme 

Court cited with approval to the Second District’s concern for the need to “authorize 

supreme court review” and establish “binding precedent” Id. at 724-25, factors 

which the majority opinion here does not adequately credit. 

Concerning the adequacy of relief, there is no other suitable method of review. 

The county court’s authority to certify issues of great public importance directly to 

the district courts of appeal is not adequate. The Second District in Stilson and the 

Florida Supreme Court in Ivey both acknowledged the existence of the county 
26

court’s authority in this regard, and they both still concluded that “there may never 

be ‘clearly established principles of law’ governing a wide array of county court 

issues, including PIP issues.” Ivey, 774 So. 2d at 683; Stilson, 692 So. 2d at 983. 

These statements by the Second District and the Florida Supreme Court confirm that 

the county court’s ability to certify is not a solution. Unless one finds acceptable the 

idea that “there may never be ‘clearly established principles of law’ governing a 

wide array of county court issues, including PIP issues,” the inescapable conclusion 

is that county court certification is simply not an adequate remedy for circuit court 

appellate conflicts.

This conclusion is borne out by experience. While the conflicting legal 

precedents in the circuit court at issue in this case were ultimately resolved by this 

court based on a county court certification, the conflict at issue here festered in the 

circuit court for years, causing identically situated parties who filed or defended suits 

in the same county court to receive diametrically different outcomes.13 And that 

 13 See, e.g., Allstate Ins. Co. v. Gables Ins. Recovery Inc., a/a/o Moran, No. 13-305 

AP (Fla. 11th Cir. Ct. May 18, 2016) (policy language not sufficient) (Lederman, 

Cohen, and Prescott, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI 

LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir. Ct. Dec. 7, 2015) 

(policy language not sufficient) (Hogan-Scola, Cueto, and Orshan, JJ.); Allstate Fire 

& Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Politesse, 21 Fla. L. Weekly 

Supp. 989 (Fla. 11th Cir. Ct. June 23, 2014) (policy language sufficient) (Korvick, 

Bloom, and Walsh, JJ.); Allstate Indem. Co. v. Gables Ins. Recovery, Inc., a/a/o 

Jimenez, 22 Fla. L. Weekly Supp. 1146 (Fla. 11th Cir. Ct. June 8, 2015) (policy 
27

resolution would not have helped the litigants in this case, but for our issuance of the 

writ. The history of this case and the many related cases show that the county court’s 

authority to certify is not adequate to provide a timely resolution of the conflict. 

On reflection, this fact should have been obvious from the beginning. 

Examination of the Florida Supreme Court’s jurisdiction to review district court 

decisions suggests that the drafters never viewed a court’s jurisdiction to review 

certified questions as an adequate replacement for a court’s jurisdiction to resolve 

conflict. When the drafters removed the Florida Supreme Court’s authority to issue 

writs of certiorari, they provided the Florida Supreme Court both the discretion to 

review certified issues and, separately, the discretion to review conflicts between the 

district courts. See Art. V, §§ 3(b)(3), (4), (7), (8), Fla. Const. The drafters would 

not have provided both avenues for review if they believed review by certification 

adequately addressed the need for review of conflicts. 

History proved the drafters right. In 2015, for example, the Florida Supreme 

Court reviewed 33 cases certified as having great public importance but 864 cases 

 

language sufficient) (Bernstein, Hendon, and Manno Schurr, JJ.); Allstate Prop. & 

Cas. Ins. Co. v. Royal Diagnostic Ctr. Inc., a/a/o Mondy, 21 Fla. L. Weekly Supp. 

627 (Fla. 11th Cir. Ct. Apr. 3, 2014) (policy language sufficient) (Smith, Lobree, 

and Verde, JJ.).
28

based on conflict.14 As these figures show, the Supreme Court considers over 25 

times more cases under conflict jurisdiction than certification jurisdiction. These 

court statistics indicate that the discretion to review certified questions is not an 

adequate replacement for the discretion to review conflicts. 

Some parts of the legal community are exploring other ways to address the 

problem. 15 Obviously, if and when another adequate solution to the problem of

incorrect results in circuit court appeals which are inconsistent with other circuit 

court decisions in the same circuit and district becomes available, the analysis set 

forth in this opinion would suggest that second-tier certiorari would not be 

 14 Florida Supreme Court, Supreme Court Monthly/Term/Yearly Statistics for the 

Period 01/01/2015 – 12/31/2015,

http://www.floridasupremecourt.org/pub_info/documents/caseload/2015_Florida_

Supreme_Court_Caseload.pdf (last visited March 15, 2017). 

15 One idea being floated is to create en banc circuit court panels. In most circuits, 

such panels would be “be impractical because of the large number of circuit judges 

that would be involved.” State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). 

But even if one untangled the problem of the size of such panels, en banc circuit 

court panels would not resolve conflicts between circuits within a district. Perhaps 

district-wide en banc circuit panels could be created drawn from, and with authority 

to bind, all circuits in a district. Such a panel, however, begins to resemble a district 

court of appeal, except that its decisions would not be reviewable by the Supreme 

Court. Any solution that fails to provide Supreme Court review to ensure ultimate 

state-wide uniformity is not adequate. In the final analysis, our court system must 

ensure there is only one body of law in Florida that applies equally to all persons 

within the jurisdiction of the Florida courts. While there may be other solutions to 

this problem, the simple and direct fix is second tier certiorari as described in this 

opinion. 
29

appropriate because another remedy was available. At the present time, however, 

no such method is available. Therefore, when considering “the adequacy of other 

relief,” I can only conclude there is no other adequate relief at his time for incorrect 

circuit court appellate decisions that are inconsistent with other circuit court 

appellate decisions except certiorari.

Thus, based on both “the gravity of the error and the adequacy of other 

relief[,]” Custer, 62 So. 3d at 1092, a district court has the discretion to issue a writ 

of certiorari to review an incorrect circuit court appellate decision that expressly and 

directly conflicts with another circuit court appellate decision in the same district. 

CONCLUSION

The county and circuit courts acting in their appellate capacity deal with issues 

that touch the lives of the people of Florida in crucial ways. It is imperative that clear 

precedents be available to the judges and litigants doing this vital work. As judges, 

we cannot accept a system of appellate review in which “there may never be ‘clearly 

established principles of law’ governing a wide array of county court issues.” See

Ivey, 774 So. 2d at 683. Like judge-made rules of procedure, judge-made 

interpretations of common law writs “should never be permitted to become so 

technical, fossilized, and antiquated that they obscure the justice of the cause and 
30

lead to results that bring its administration into disrepute.” In re Gottschalk’s Estate, 

196 So. 844, 844 (Fla. 1940).

Rather than resign ourselves to an unacceptable situation, condemn litigants 

to unequal treatment, and stand by while the prestige and credibility of the courts is 

lowered in the eyes of the public, the courts should develop this judge-made law to 

serve the needs of the courts, litigants, and people as they have in the past. See, e.g., 

De Groot, 95 So. 2d at 915. Because incorrect appellate decisions of the circuit courts 

which are inconsistent with prior decisions of the circuit courts in the same circuit 

and district constitute miscarriages of justice and no other adequate remedy exists, 

the issuance of a writ of certiorari properly serves as the backstop to prevent this sort 

of grievous error.