The misapplication theory of express and direct conflict jurisdiction: the Florida Supreme Court expands its view of its powers.

• Author: Ryan, Nancy
• Position: Appellate Practice

The Florida Supreme Court is a court of limited jurisdiction; it is empowered to hear only those cases that fit the categories set out in Fla. Const. art. V [section]3(b). (1) In some of those categories, its jurisdiction is mandatory, i.e., it both may and must hear appeals in specified subject matter areas. (2) In other categories, its jurisdiction is discretionary. (3) This article concerns the Florida Supreme Court's discretionary jurisdiction to review DCA decisions that "express[ly] and direct[ly] conflict" with previous decisions. (4) This article does not address the court's jurisdiction to review decisions when the DCA certifies such conflict pursuant to Fla. Const. art. V [section]3(b) and Fla. R. App. P. 9.030(a)(2) (A)(vi).

Ever since the district courts of appeal were created in 1956, the Florida Supreme Court has had some form of jurisdiction to resolve legal conflicts that develop in those courts. From 1956 to 1980, Fla. Const. art. V, [section]3(b) (3) provided for Florida Supreme Court review of DCA decisions when they were "in direct conflict with a decision of any DCA or of the [S]upreme [C]ourt on the same question of law."

Initially, in Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958), the Florida Supreme Court announced it would exercise its conflict jurisdiction cautiously. The court in Ansin declined to review a decision of the Third DCA, which affirmed a judgment finding the defendant liable in an attractive-nuisance case. The defendant sought conflict review, arguing that the cases the DCA relied on were factually distinguishable from his case. The court held that the requirement of a direct conflict "clearly evinces a concern with decisions as precedents as opposed to adjudications of the rights of particular litigants," and quoted Corpus Juris Secundum to the effect that "conflicting decisions" are those that are "based practically on the same set of facts" and which "announce antagonistic conclusions." (5)

Shortly afterward, in Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960), the Florida Supreme Court announced a somewhat broader view, construing "direct conflict" as permitting review in two sets of circumstances. The first arises when a DCA announces a rule of law that conflicts with a rule announced by the Florida Supreme Court, and the second arises when a DCA applies a rule of law to produce a different result from the result reached in a previous decision, which involved substantially the same controlling facts. (6)

By the 1970s, the Florida Supreme Court was regularly accepting discretionary conflict jurisdiction on the basis that the DCA decision under review misapplied precedent from the Florida Supreme Court, another DCA, or the same DCA. In Midwest Mutual Insurance Co. v. Santiesteban, 287 So. 2d 665 (Fla. 1973), the court held that the DCA had "misapplied and misconstrued" a Florida Supreme Court precedent by applying it to a case in which one aspect of the operative facts was critically different. In Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972), the Fourth DCA affirmed a judgment awarding a plaintiff damages in a battery case, citing a case from the Second DCA; the Florida Supreme Court took jurisdiction, on the basis that the case from the Second DCA involved intentional harm while the case from the Fourth DCA involved no similar intent. In Wale v. Barnes, 278 So. 2d 601 (Fla. 1973), the court held that the Third DCA had misapplied its own decisions. In that case, the DCA affirmed entry of a directed verdict for a doctor in a medical malpractice case, citing its own precedent; the court took jurisdiction, noting that in Wale, there had been testimony that the doctor's actions had caused...