Villa Lyan, Inc. v. Perez ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed March 11, 2015.
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No. 3D14-2123
Lower Tribunal No. 13-416 AP
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Villa Lyan, Inc.,
Petitioner,
vs.
Veronica Perez,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jennifer D. Bailey, Bertila Soto, and Reemberto Diaz, Judges.
The Hunker Law Group, P.A., and Thomas L. Hunker, for petitioner.
Andrew Paul Kawel, for respondent.
Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
CONFESSION OF ERROR
PER CURIAM.
Villa Lyan, Inc. (“Villa Lyan”), petitions this Court for a writ of certiorari to
quash two orders of the Circuit Court’s Appellate Division granting Veronica
Perez’s (“Perez”) Motion to Dismiss for Lack of Jurisdiction and granting Perez’s
Motion for Appellate Attorney Fees. Respondent Perez confesses error, and we
agree that the Appellate Division departed from the essential requirements of law
resulting in a miscarriage of justice. Accordingly, we grant Villa Lyan’s petition
for writ of certiorari and quash the two orders below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, Villa Lyan, is a not-for-profit corporation that provides education
to children with special needs. Villa Lyan employed Perez as a full-time teacher
from January 22, 2013, to June 14, 2013. On August 2, 2013, Perez filed a wage
theft complaint against Villa Lyan with the Miami-Dade County Department of
Regulatory and Economic Resources Business Affairs Division (“Department”),
asserting that Villa Lyan had failed to pay her certain wages. Unsuccessful in its
defense before the Department, Villa Lyan filed a timely notice of administrative
appeal in the Appellate Division of the Eleventh Judicial Circuit Court. Perez
moved to dismiss the appeal, arguing that Villa Lyan’s proper remedy was by way
of certiorari. Perez also filed a separate motion for appellate attorney fees. The
Appellate Division entered an order granting the motion to dismiss and the motion
for appellate attorney fees. Villa Lyan timely filed this petition for second-tier
certiorari seeking review of the Appellate Division’s opinions. We have
jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2).
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II. ANALYSIS
“The standard governing the disposition of a petition for second-tier
certiorari in a district court is narrow: ‘[T]he district court must determine whether
the decision of the circuit court . . . is a departure from the essential requirements
of law resulting in a miscarriage of justice.’” State, Dep’t of Highway Safety &
Motor Vehicles v. Fernandez, 114 So. 3d 266, 269-70 (Fla. 3d DCA 2013)
(quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712,
725 (Fla. 2012)). “The circuit court’s decision is said to depart from the essential
requirements of law where the circuit court fails to afford procedural due process
or fails to apply the correct law.” Fernandez, 114 So. 3d at 270 (quoting Nader, 87
So. 3d at 722–23).
Villa Lyan contends that the Appellate Division failed to apply the correct
law when it granted the Motion to Dismiss. In support of its argument, Villa Lyan
cites Florida Rule of Appellate Procedure 9.040(c), which states that “[i]f a party
seeks an improper remedy, the cause shall be treated as if the proper remedy had
been sought; provided that it shall not be the responsibility of the court to seek the
proper remedy.” Furthermore, Villa Lyan asserts that pursuant to both article V,
section 2(a) of the Florida Constitution1 and section 59.45, Florida Statutes (2014),2
1 Article V, section 2(a), of the Florida Constitution reads in relevant part: “The
supreme court shall adopt rules for the practice and procedure in all courts
including . . . a requirement that no cause shall be dismissed because an improper
remedy has been sought.”
2 Section 59.45, Florida Statutes, entitled “Misconception of remedy; Supreme
Court,” specifically states: “If an appeal be improvidently taken where the
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when a party improperly files a timely notice of appeal, the appellate court cannot
dismiss for lack of jurisdiction, but rather must treat the appeal as a petition for
writ of certiorari.
A case should not be dismissed because an improper remedy has been
sought, and “Rule 9.040(c) must be complied with by courts acting in their review
capacity.” Elmore v. City of Orange City, 528 So. 2d 997, 998 (Fla. 5th DCA
1988) (citing Pridgen v. Bd. of Cnty. Comm’rs, 389 So. 2d 259 (Fla. 5th DCA
1980)). Significantly, our sister District Courts have granted certiorari and
quashed appellate division orders that dismissed appeals of administrative orders
because the appellate division’s jurisdiction purportedly had not been properly
invoked. Id. at 998 (quashing appellate division order granting motion to dismiss
on basis that improper remedy had been sought); Ceslow v. Bd. of Cnty. Comm’rs,
Palm Beach Cnty., 428 So. 2d 701, 702 (Fla. 4th DCA 1983) (finding that section
59.45 and Rule 9.040(c) allow a notice of appeal to be considered petition for
certiorari sufficient to invoke the circuit court’s jurisdiction); Swope v. Coryell,
107 So. 2d 153, 155 (Fla. 2d DCA 1958) (holding that circuit court had authority
to utilize section 59.45 to treat appeal as petition for certiorari where appeal was
remedy might have been more properly sought by certiorari, this alone shall not
be a ground for dismissal; but the notice of appeal and the record thereon shall be
regarded and acted on as a petition for certiorari duly presented to the Supreme
Court.” See also Alliance for Conservation of Natural Res. in Pinellas Cnty. v.
Furen, 104 So. 2d 803, 808 (Fla. 2d DCA 1958) (stating that section 59.45 applies
to the Supreme Court, the District Courts of Appeal, and the Circuit Courts in the
exercise of their appellate jurisdiction).
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improvidently taken and proper review would have been by petition for certiorari);
cf., e.g., Pearce v. Parsons, 414 So. 2d 296, n.1 (Fla. 2d DCA 1982) (considering
as notice of appeal an erroneously filed petition for writ of certiorari).
Here, the Appellate Division applied the incorrect law by granting Perez’s
motion to dismiss due to the wrong type of relief sought. The fact that Villa Lyan
filed a timely notice of appeal, not a petition for writ of certiorari, cannot result in
the dismissal of the action; this would result in a miscarriage of justice, as any
errors subject to relief in the Circuit Court would be allowed to stand and act as a
total bar to Villa Lyan’s right to an appellate remedy. See Fla. R. App. P. 9.040(c),
(d). The Appellate Division deprived Villa Lyan of a substantive right guaranteed
by statute, rule, case law, and the Florida Constitution when it erroneously
dismissed Villa Lyan’s appeal, rather than treating it as a petition for writ of
certiorari. Accordingly, the order granting the motion to dismiss is quashed.
Additionally, because Perez no longer qualifies as the “prevailing party”
under section 448.08, Florida Statutes (2012),3 and section 59.46, Florida Statutes
(2010),4 the order granting Perez’s Motion for Appellate Attorney Fees is quashed
as well.
3 Section 448.08, Florida Statutes, specifically states: “The court may award to the
prevailing party in an action for unpaid wages costs of the action and a reasonable
attorney’s fee.”
4 Section 59.46, Florida Statutes, reads: “In the absence of an expressed contrary
intent, any provision of a statute or of a contract entered into after October 1, 1977,
providing for the payment of attorney’s fees to the prevailing party shall be
construed to include the payment of attorney’s fees to the prevailing party on
appeal.”
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We grant Villa Lyan’s petition for writ of certiorari and quash both orders of
the Appellate Division granting Perez’s motion to dismiss and motion for appellate
attorney fees.
PETITION GRANTED; ORDERS QUASHED.
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