Oh No! Nota Per Curiam Affirmed Decision on My Appeal.

AuthorMuniz, H. Michael

A modest epiphany suggested that the instant article may be somewhat like the late 1980s-1990s TV show Seinfeld. (1) As much as the author may be constrained otherwise, this article may also be about nothing. As avid fans may recall, Seinfeld was implicitly deemed to be a show about nothing by one of the show's four main characters--George Costanza. Despite the "nothing" moniker, the iconic TV show enlightened viewers for nine years (1989-1998). (2) An appellate court per curiam affirmed decision (PCA), meaning without a written opinion, (3) is an essential appellate practice primarily utilized by Florida's five district courts of appeal (DCA). PCAs are vital to Florida's ever-burgeoning common-law jurisprudence and, thus, have staying power much like Seinfeld had staying power, back in the day.

The DCA Grounds for A PCA Decision

Not surprisingly, some appellate counsel for appellant(s) have found it downright exasperating that an appellate court would render a PCA decision upon their client's allegedly meritorious appeal. (4) Although not frequently invoked, that the Florida Rules of Appellate Procedure expressly provide for summary affirmances of trial court orders even before an appellate answer brief is filed seems to be a rule disregarded or ignored by numerous appellants' counsel. (5) By Florida Supreme Court-adopted appellate rule, because a summary affirmance may be reached before an appeal has been fully briefed, a fortiori, a summary affirmance may undeniably be rendered upon full appellate briefing. Moreover, 25 years ago, the Fourth DCA informed the Elliott family litigants, their attorneys, the Florida judiciary, and The Florida Bar that "it is fundamental black letter law" that a PCA "disposition affirming a trial court order without a written opinion, occurs when the points of law raised are so well settled that a further writing would serve no useful purpose." (6) "The sheer volume of appeals, in and of itself, would ... indicate the impossibility of a written opinion on every affirmance." (7) Relying on the opinion authored by the late appellate DCA Judge John S. Rawls in Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA 1970), the appellate district court in Elliott v. Elliott, 648 So. 2d 137 (Fla. 4th DCA 1994), further provided that the "[c]ourt and not the attorney for the losing party is charged with the responsibility of deciding which cases merit and warrant a full written opinion upon the basis of that opinion's contribution to the jurisprudence of this [s]tate" ... and, moreover, the Court "has not overlooked or failed to consider the jurisprudence of this [s]tate in deciding a case without a written opinion." (8)

Likewise, more than 35 years ago, the First DCA upon a motion for rehearing following a PCA, the appellate court consumed additional limited judicial time to explain why counsel cannot reasonably expect a written opinion from the court in all affirmances of lower tribunal orders and judgments. (9)

We recognize that if we decide a case without writing an opinion, the losing party will be unable to obtain further review in the supreme court. Therefore, we endeavor to write opinions in all cases in which we believe that our decision can arguably be in conflict with a prior decision of the supreme court or a district court of appeal. To be ever faithful to this practice, there have been cases in which we first decided a case without opinion but, upon rehearing, determined to write an opinion in order to distinguish the cases relied on by the losing party. See, e.g., Fortman v. Freedom Fed. Sav. & Loan Assoc., 403 So. 2d 985 (Fla. 2d DCA 1981), petition for review denied, 402 So. 2d 609 (Fla. 1981). In Fortman we wrote because we felt the cited cases were close enough on point that the losing party could make a legitimate argument to the

supreme court that we had improperly distinguished them from the case at hand. The fact remains, however, that most of the cases cited by zealous advocates as being in direct conflict with our PCA decisions are simply not close enough to write about. Appellant correctly observes that the decision of whether to write an opinion rests with the assigned panel of three judges. However, he does this court an injustice by saying that such decision is made "[u]pon the whim, or caprice" of the assigned judge or panel. He characterizes this procedure as "arbitrary, capricious, and irrational." (10) Of course, each appeal is assigned to a panel of three appellate district court judges before being disposed of on the merits. (11) The appellate district court in Whipple v. State, 431 So. 2d 1011 (Fla. 1st DCA 1983) (per curiam), further acknowledged that the DCA writes opinions in all reversals, remands, and in affirmances in which the appellate court believes a written opinion will make a substantial contribution to the law, or where necessary to disclose conflict or certify questions. (12) If it were not permissible to issue a PCA, the processing of appeals would be materially delayed. (13) The Whipple court concluded by urging appellate counsel to carefully consider the appropriateness of filing a motion for rehearing, (14) particularly upon receipt of a PCA that just may lead to an order to show cause why sanctions should not be imposed. (15)

More than 50 years ago, the Third DCA also provided an insightful explanation for the issuance of PCA decisions.

Omitting opinions in a minority of affirmances is customary with appellate courts. It is a useful, if not essential practice of a busy appellate court such as this, where the judges each are faced with a need to write more than [100] opinions annually. Thus, opinions generally are dispensed with upon affirming cases which do not involve new or unusual points of law, or which turn on facts to which established rules of law are applicable, or where a full or adequate opinion has been supplied by the trial judge; and where the writing of an opinion would be without useful purpose, serving only to satisfy the parties that the court adverted to the issues and gave them attention, and to add needlessly to an already excessive volume of opinions. (16) Thus, Florida's appellate district courts have expressly provided multiple grounds for rendering the ubiquitous PCA; to wit: 1) the sheer plethora or volume of appeals; 2) the lack of a substantial contribution to Florida's common law jurisprudence; 3) the lack of novel issues raised on the appeal; 4) the lack of a useful purpose for a written opinion; 5) where well established rules of law are applicable; and 6) where a full or adequate written opinion has been supplied by the trial judge. (17) Objectively considered, such grounds may not be deemed unreasonable.

Post-PCA Review or a Written Opinion

The Florida Supreme Court has made clear that while a party on appeal may submit a request for a written opinion to a district court of appeal, the DCA retains the inherent discretion to issue a written opinion when, in its reasoned judgment, a written opinion is required. (18) Significantly, the Florida Supreme Court lacks jurisdiction to review a PCA. (19) Although rarely exercised, the U.S. Supreme Court may review a PCA rendered by a Florida district court of appeal (20) as well as by the Florida Supreme Court. (21) Notably, the Florida Supreme Court may review a PCA with a citation to a case that is pending review at the Supreme Court. (22) The Florida Supreme Court also lacks jurisdiction to review a PCA that contains nothing more than mere case citations to cases not pending review before the Supreme Court. (23) Indeed, the Florida Supreme Court has expressly provided that:

based on our case law since Jenkins, it is clear that we have explicitly held that this [c]ourt lacks discretionary review jurisdiction over the following four types of cases: (1) a per curiam affirmance rendered without written opinion-see Jenkins, 385 So. 2d at 1359; (2) a per curiam affirmance with a citation to (i) a case not pending review or a case that has not been quashed or reversed by this [c]ourt, (ii) a rule of procedure, or (iii) a statute-see Dodi Publishing, 385 So. 2d at 1369, and Jollie, 405 So. 2d at 421; (3) a per curiam or other unelaborated denial of relief rendered without written opinionsee Stallworth, 827 So. 2d at 978; and (4) a per curiam or other unelaborated denial of relief with a citation to (i) a case not pending review or a case that has not been quashed or reversed by this [c]ourt, (ii) a rule of procedure, or (iii) a statute-see Gandy, 846 So. 2d at 1144. (24) It should further be recognized that there is no automatic or fundamental right for a party to obtain a written opinion on appeal when requested. (25) Accordingly, when appellate practitioners enter the Florida appellate arena, (26) the learned practitioner, particularly on behalf of the appellant, must be willing to accept that an appellate court may render a PCA decision on their client's appeal.

On occasion, however, a cordial, respectful request for a written opinion is granted by the appellate court, even if the ultimate affirmed decision on appeal remains unchanged. (27) Florida appellate district courts have also been recognized for having sua sponte withdrawn a PCA and rendered a written opinion. (28) While the majority of occasions in which the appellate courts change their judicial minds to render a written opinion occurs within the typically more complex criminal appellate context, the same occurs from time to time on civil appeals. (29) It should further be recognized that the purpose of a motion for written opinion is to provide a basis for review by the Florida Supreme Court, not to impose upon or require the appellate DCA to explain itself (30) and, once an appellate decision is withdrawn, that decision has absolutely no precedential value. (31)

A Florida PCA Possesses Certain Limited Attributes

Unlike a written, detailed, elaborated, explanatory appellate decision, a...

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