FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4382

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AMALGAMATED TRANSIT UNION,

LOCAL 1579,

Petitioner,

v.

CITY OF GAINESVILLE,

Respondent.

_____________________________

Petition for Writ of Certiorari—Original Jurisdiction.

February 15, 2019

WOLF, J.

Amalgamated Transit Union, Local 1579 (Union), seeks

certiorari review of a trial court order vacating an arbitration 

award and remanding the matter for a new arbitration before a

different arbitrator. We find that we have jurisdiction, grant the 

petition, and quash the trial court’s order. We also certify conflict 

with the Third, Fourth, and Fifth Districts, which have 

determined that appellate courts do not have jurisdiction over a 

petition for writ of certiorari seeking review of a trial court order 

vacating an arbitration award and ordering a new arbitration.

FACTS

In 2015 the City of Gainesville (City) terminated the 

employment of a bus driver, who was a member of the Union, for 
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slapping the hands of passengers on two separate occasions in 

violation of two of the City’s Rules. The Union filed a grievance 

with the City, and the parties ultimately submitted the matter to 

a mutually selected arbitrator.

At the arbitration hearing, both parties presented evidence 

including videos of the two incidents, witness testimony, the 

driver’s employment records, and the City’s policies and rules. 

The arbitrator issued his ruling in November 2016, finding the 

driver had not violated either Rule and ordering the City to 

reinstate the driver with back pay.

In February 2017, the City filed a petition to vacate the 

arbitration award in the circuit court. The circuit court held an 

evidentiary hearing and found the arbitrator displayed evident 

partiality by finding the driver did not violate the Rules and 

improperly commenting on the age and demeanor of the 

passengers involved in the altercations. The court also found that 

the arbitrator exceeded the scope of his authority by rendering an 

award beyond the scope of the collective bargaining agreement.

The circuit court ordered the parties to undergo a new arbitration 

proceeding before a different arbitrator. The Union filed a 

petition for writ of certiorari in this court challenging that ruling.

STANDARD OF REVIEW

It is well settled that to obtain a writ of certiorari, a party 

must show there is “(1) a departure from the essential 

requirements of the law, (2) resulting in material injury for the 

remainder of the case (3) that cannot be corrected on 

postjudgment appeal.” Reeves v. Fleetwood Homes of Florida, Inc., 

889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder, 

826 So. 2d 382, 387 (Fla. 2d DCA 2002)). The irreparable harm 

requirement is jurisdictional, and if a petitioner fails to establish 

irreparable harm, then the appellate court must dismiss the 

petition. See Loewenstein, Inc. v. Draheim, 898 So. 2d 1129, 1130 

(Fla. 4th DCA 2005) (dismissing petition for writ of certiorari 

because the petitioner failed to establish irreparable harm).
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JURISDICTION

We have jurisdiction, as we have previously held that a trial 

court’s order vacating an arbitration award and remanding the 

matter for a new arbitration constitutes irreparable harm. Heart 

Surgery Ctr. v. Thomas J. Bixler, II, M.D., P.A., 128 So. 3d 169

(Fla. 1st DCA 2013); Felger v. Mock, 65 So. 3d 625 (Fla. 1st DCA 

2011). As we stated in Felger, an order vacating an arbitration 

award and ordering a rehearing before another arbitration panel 

has the same effect as an order granting a motion for new trial

and warrants review for the same reasons. 65 So. 3d at 628.

Three of our sister courts have held that certiorari 

jurisdiction does not exist to review a trial court’s order vacating 

an arbitration award and requiring the parties to undergo 

another arbitration proceeding. Miami-Dade Cty. v. King, 176 So. 

3d 373, 374 (Fla. 3d DCA 2015); Loewenstein, 898 So. 2d at 1130; 

Zabawa v. Penna, 868 So. 2d 1292 (Fla. 5th DCA 2004).

Each of these cases appear to be based, in part, on the idea 

that the time and expense of additional proceedings is not the 

type of irreparable harm that is required to invoke the certiorari 

jurisdiction of an appellate court. We certify conflict with these 

cases and reject their holdings for three reasons.

First, requiring a party to go through a second evidentiary 

proceeding is qualitatively different from simply requiring a 

party to continue with an initial merits proceeding. A second 

merits proceeding requires potentially unnecessary repetition 

and may result in inconsistent determinations that would call 

into question a trial court’s proper role in reviewing an 

arbitration reward. In Felger, we correctly analogized a trial 

court order vacating an arbitration award and mandating a 

second arbitration with an order granting a motion for new trial. 

65 So. 3d at 627-28. More is involved than simply the time and 

expense of additional proceedings.

Second, while case law has rejected the idea that an order 

vacating an arbitration award and requiring an additional 

arbitration is a final appealable order, such as in City of Fort 

Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So. 2d 

162, 162–63 (Fla. 4th DCA 1991), no more judicial labor needs to 
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be done in relation to a vacated final arbitration award, 

regardless of whether it is sent for a new arbitration. Any further 

judicial labor on the part of the trial court will be directed to the 

second arbitration proceeding. Thus, while precedent prevents us 

from reviewing the trial court’s order as an appealable final 

order, it should be subject to some form of review by an appellate 

court.1

Finally, petitioner persuasively argues that by not providing 

for some review of trial court orders vacating an arbitration 

award and ordering a new arbitration, we are not providing 

deference to the alternative dispute resolution process. Florida 

has long held that arbitration is a contracted for agreement that 

ensures an alternative to litigation designed to limit litigation 

and promote finality. See, e.g., Visiting Nurse Ass’n of Florida, 

 1 All of the federal circuit courts that have addressed this 

issue have held they have jurisdiction to review a federal district 

court’s order vacating an arbitration award and remanding the 

case for a new arbitration. Sanchez v. Elizondo, 878 F.3d 1216, 

1219 (9th Cir. 2018); Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d 

321, 328 (1st Cir. 2000); Jays Foods, L.L.C. v. Chem. & Allied 

Prod. Workers Union, Local 20, 208 F.3d 610, 612–13 (7th Cir. 

2000); V.I. Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27 

F.3d 911, 914 (3d Cir. 1994); Landy Michaels Realty Corp. v. 

Local 32B–32J, Serv. Emps. Int’l Union, 954 F.2d 794, 797 (2d 

Cir. 1992); Forsythe International, S.A. v. Gibbs Oil Company of 

Texas, 915 F.2d 1017 (5th Cir. 1990). However, the federal 

appellate courts reached this conclusion based on the statutory 

language of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, 

not on inherent powers or jurisdiction over specific writs. 

Sanchez, 878 F.3d at 1219-20. The federal statute differs from 

Florida’s statute in that it permits an appeal to be taken from an 

order modifying, correcting, or vacating an arbitration award 

under 9 U.S.C. § 16(a)(1)(E), whereas section 682.20(1)(f), Florida 

Statutes, specifically allows “an appeal from an order vacating an 

award without directing a rehearing.” While federal law is not 

controlling, it is a persuasive example of how courts can better 

protect the arbitration process with direct, rather than 

protracted, appellate review.
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Inc. v. Jupiter Med. Ctr., Inc., 154 So. 3d 1115, 1135-36 (Fla. 

2014). Requiring parties to undergo an additional evidentiary 

procedure without appellate review would thus frustrate the 

entire stated point of arbitration: limited litigation and finality.

Accordingly, providing certiorari review in the limited 

circumstances where a trial court has clearly departed from the 

essential requirements of the arbitration statute not only protects 

the contractual agreement reached between parties in a specific 

case, but also supports the rationale behind the use of arbitration 

as an alternative form of dispute resolution.

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF THE LAW

To establish that a trial court has departed from the 

essential requirements of the law, a party must show “the trial 

court made an error so serious that it amounts to a miscarriage of 

justice.” Fuller v. Truncale, 50 So. 3d 25, 27 (Fla. 1st DCA 2010)

(quoting State v. Smith, 951 So. 2d 954, 958 (Fla. 1st DCA 2007)). 

“A ruling constitutes a departure from the essential requirements 

of the law when it amounts to a violation of a clearly established 

principle of law resulting in a miscarriage of justice. The term 

clearly established law refers to recent controlling case law, rules 

of court, statutes, and constitutional law.” Heart Surgery Ctr., 

128 So. 3d at 173 (citing Dep’t of Revenue ex rel. Carnley v. Lynch, 

53 So. 3d 1154, 1156 (Fla. 1st DCA 2011)).

In Florida, circuit courts are required to vacate an 

arbitration award if:

(a) The award was procured by corruption, fraud, or 

other undue means;

(b) There was:

1. Evident partiality by an arbitrator appointed as a 

neutral arbitrator;

2. Corruption by an arbitrator; or

3. Misconduct by an arbitrator prejudicing the rights of 

a party to the arbitration proceeding;
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(c) An arbitrator refused to postpone the hearing upon 

showing of sufficient cause for postponement, refused to 

hear evidence material to the controversy, or otherwise 

conducted the hearing contrary to s. 682.06, so as to 

prejudice substantially the rights of a party to the 

arbitration proceeding;

(d) An arbitrator exceeded the arbitrator’s powers;

(e) There was no agreement to arbitrate, unless the 

person participated in the arbitration proceeding 

without raising the objection under s. 682.06(3) not later 

than the beginning of the arbitration hearing; or

(f) The arbitration was conducted without proper notice 

of the initiation of an arbitration as required in s. 

682.032 so as to prejudice substantially the rights of a 

party to the arbitration proceeding.

§ 682.13(1)(a)-(f), Fla. Stat.

In the absence of one of the above numerated factors, courts 

are without authority to overturn an arbitration award. See

Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328 

(Fla. 1989). Moreover, a trial court may not vacate an arbitration 

award for mere errors of judgment an arbitrator has made as to 

the law or as to the facts of a case. Visiting Nurse Ass’n of 

Florida, Inc., 154 So. 3d at 1134.

In the instant case, the trial court vacated the arbitration 

award for two reasons: the arbitrator demonstrated evident 

partiality and the arbitrator exceeded his powers.

Evident Partiality

The correct test for weighing an arbitrator’s evident 

partiality “consists of judging whether the complaining party 

made a showing through credible evidence, giving rise to a 

reasonable impression of partiality that was direct, definite, and 

capable of demonstration, as distinct from a mere appearance of 

bias that was remote, uncertain, and speculative.” Heart Surgery 

Ctr., 128 So. 3d at 175 (quoting RDC Golf of Fla. I, Inc. v. 
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Apostolicas, 925 So. 2d 1082, 1095 (Fla. 5th DCA 2006)). A trial 

court’s failure to use the correct test in judging the partiality of 

the arbitrator and the failure to correctly interpret case law 

constitutes a departure from the essential requirements of law. 

Heart Surgery Ctr., 128 So. 3d at 176.

In this case, the trial court utilized, in part, an “outrageous 

findings” standard that has been used in some federal cases.

United Indus. Workers, Serv., Transp., Prof’l Gov. of N. Am. of 

Seafarers’ Intern. Union of N. Am., Atl., Gulf, Lakes & Inland 

Waters Dist. AFL-CIO, (Local No. 16) on Behalf of Bouton v. Gov.

of Virgin Islands, 987 F.2d 162, 171 (3d Cir. 1993); Holodnak v. 

Avco Corp., Avco-Lycoming Div., Stratford, Connecticut, 381 F. 

Supp. 191, 199 (D. Conn. 1974), aff’d in part, rev’d in part, 514 

F.2d 285 (2d Cir. 1975).

The outrageous findings standard has not been adopted in 

Florida as a distinct reason for vacating an award. In some cases 

the language of an arbitration award may provide evidence of 

partiality that could permit a court to vacate an arbitration 

award. However, we decline to adopt that standard here as it 

could impermissibly lead to trial courts reevaluating factual 

findings and legal conclusions. See Visiting Nurse Ass’n of 

Florida, Inc., 154 So. 3d at 1134. Such reevaluations occurred in 

this case. The arbitrator’s challenged remarks related to the 

demeanor and actions of the alleged victims, matters that were 

clearly relevant to the lawfulness of the driver’s actions during 

the incidents.2 While the trial court disagreed with the 

 2 The trial court objected to the arbitrator’s characterization 

of the passenger in the first incident as “an embittered, angry old 

woman who was mad at the world and spoiling for a verbal fight 

before she even boarded the bus,” who was “childish and 

obnoxious.” The trial court also found it outrageous that the 

arbitrator described the passenger in the second incident as “an 

already angry male passenger who got on the bus fussing at the 

driver, and who was also looking for trouble.” While the 

arbitrator’s remarks may be somewhat intemperate, the gist of 

the remarks concerning the demeanor of the passengers was

arguably supported by inferences the arbitrator could have made 

from the video recordings of the incidents provided to him.
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arbitrator’s characterization of the evidence, the remarks did not 

demonstrate partiality toward a particular party.

Accordingly, the trial court did not employ the correct legal 

standard and thus departed from the essential requirements of 

law.

However, even if the circuit court had used the correct legal 

standard, it still departed from the essential requirements of the 

law by reweighing the facts of the case and concluding that the 

arbitrator employed the incorrect legal standard. Neither of these 

reasons constitute a valid basis for overturning an arbitration 

award under section 682.13. Id.

Excess of Authority

A trial court departs from the essential requirements of the

law when it erroneously concludes that an arbitrator has 

exceeded his authority. Fegler, 65 So. 3d at 627. If an arbitration 

award is within the scope of the parties’ collective bargaining 

agreement, a trial court cannot vacate the award on the basis 

that the arbitrator exceeded his authority. Id. It bears repeating

that a trial court may not vacate an arbitration award for mere 

errors of judgment an arbitrator has made as to the law or as to 

the facts of a case. Visiting Nurse Ass’n of Florida, Inc., 154 So. 

3d at 1134.

Here, the second reason the trial court vacated the 

arbitration award was because it found the arbitrator exceeded 

his authority by rendering an award that was beyond the scope of 

the collective bargaining agreement. Specifically, the trial court 

found that the arbitrator: (1) ignored the plain language of the 

rules petitioner was alleged to have violated; (2) struck the words 

“unlawful” and “improper” from one of the city’s disciplinary 

rules, declined to apply Florida’s criminal law to petitioner’s 

claim of self-defense, and failed to follow his own factual findings; 

and (3) ignored the specific penalty provision contained in the 

city’s disciplinary code by finding that although petitioner 

committed violations of the code, those violations were not 

serious enough to warrant dismissal.
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The record does not support the trial court’s determinations. 

The parties’ collective bargaining agreement states that Union 

employees are subject to the City’s disciplinary code, and both 

parties agree that the arbitrator was required to determine 

whether the driver’s conduct violated that code. The driver was 

alleged to have violated Rules 17 and 19, which pertain to the 

offenses of “fighting, provoking or instigating a fight” and 

“immoral, unlawful, or improper conduct or indecency, whether 

on or off the job which would tend to affect the employee’s 

relationship to his/her job, fellow workers’ reputations or goodwill 

in the community.”

The arbitrator correctly quoted both rules in the award, 

found the driver acted in defense of herself and the other 

passengers while operating the bus, and explicitly found that the 

driver had not acted unlawfully or improperly. The arbitrator 

ultimately concluded that the driver had not violated either rule,

and therefore the City had no justified basis to fire her.

The arbitration award was clearly within the scope of the 

arbitrator’s authority, and the trial court’s order constituted an 

impermissible review of the arbitrator’s factual findings and 

application of the law. Visiting Nurse Ass’n of Florida, Inc., 154 

So. 3d at 1134. As such, the trial court’s order was a departure 

from the essential requirements of law.

The petition for writ of certiorari is granted and the order 

under review is quashed.

BILBREY, J., concurs; KELSEY, J., concurs in part and dissents in 

part with opinion.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

KELSEY, J., concurring in part and dissenting in part.
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I concur in the majority’s resolution of the jurisdictional 

issue and in the certification of conflict. I respectfully dissent 

from the merits disposition, and would deny the petition. The 

circuit court did not err in interpreting the City’s Code of Conduct 

and the arbitration agreement; or in concluding that the 

arbitrator demonstrated bias by, at a minimum, going beyond the 

objectively-observable record facts and basing the decision on 

speculation as to the non-record feelings, motivations, and 

personalities of those involved in the underlying incidents. On 

this record, the circuit court correctly vacated the award.

_____________________________

Eric Jacob Lindstrom of Egan, Lev, Lindstrom & Siwica, P.A., 

Orlando, for Petitioner.

Thomas M. Gonzalez and Melissa Torres of Thompson, Sizemore, 

Gonzalez & Hearing, P.A., Tampa, for Respondent.