Burnett v. Target Corp.

241 So.3d 250

Shane BURNETT, Petitioner,

v.TARGET CORPORATION, Respondent.

No. 3D17–2625

District Court of Appeal of Florida, Third District.

Opinion filed March 28, 2018

Shane Burnett, in proper person.

Bowman & Brooke, LLP, Lake Mary, and Stephanie M. Simm and Shawn Y. Libman, Coral Gables, for respondent.

Before SUAREZ, LAGOA and SCALES, JJ.

SCALES, J.

Petitioner Shane Burnett seeks second-tier certiorari review of an order by the Appellate Division of the Miami–Dade Circuit Court ("Circuit Court") dismissing his appeal of an order rendered against him by the Miami–Dade County Court's Small Claims Division. We grant Burnett's petition because the circuit court dismissed Burnett's appeal without affording him the requisite procedural due process.

I. Relevant Facts and Procedural Background

In April of 2017, Burnett appealed to this Court an order of the Miami–Dade County Court Small Claims Division dismissing, with prejudice, Burnett's Statement of Claim against Target Corporation (case number 3D17–994). Contemporaneously with his notice of appeal, Burnett filed with this Court a Motion to Appear in Forma Pauperis, seeking, pursuant to Florida Rule of Appellate Procedure 9.430, a waiver of the statutorily required appellate filing fee. Without ruling on Burnett's Forma Pauperis motion, we, sua sponte , transferred Burnett's appeal, including Burnett's Forma Pauperis motion, to the Circuit Court.

In May of 2017, Burnett filed his initial appellate brief in the Circuit Court, and Target responded by filing a June 5, 2017 motion to dismiss Burnett's appeal. Target's dismissal motion asserted, among other things, that Burnett's appeal should be dismissed for Burnett's failure to pay the $287.00 filing fee for the appeal. On June 15, 2017, the appellate panel of the Circuit Court entered two separate orders: (i) an order granting Burnett's Motion to Appear in Forma Pauperis; and (ii) a related order denying Target's motion to dismiss Burnett's appeal.

On June 20, 2017, Target then filed a detailed Motion for Rehearing, arguing that the Circuit Court should not have granted Burnett's Forma Pauperis motion. Target argued that Burnett had failed to complete the required Application for Determination of Civil Indigent Status ("Application") and that Burnett had filed some eighteen civil cases during the preceding two years, paying thousands of dollars in filing fees. Target further argued that the Circuit Court failed to take into consideration that, in the same two-year period, Burnett had been declared indigent in only three of twenty-five criminal matters in which Burnett had been named as a defendant.

It appears that on August 28, 2017, the appellate panel of the Circuit Court signed an order granting Target's June 20th rehearing motion. The panel checked the "Granted" box in the form order; then the order states: "Appellant shall file the Application for Determination of Civil Indigent Status within thirty (30) days of the date of this order. Failure to do so may result in the granting of motion to dismiss appeal." This order does not vacate either of the June 15th orders; and, oddly, both this order, and the Circuit Court's docket sheet, indicate that this order was not docketed by the Circuit Court until September 27, 2017 ("September 27 Order").

Then, prior to the expiration of the thirty days referenced in the September 27 Order (regardless of whether this 30 days is calculated from August 28 or September 27), the same appellate panel signed an unelaborated order denying Target's June 20th Motion for Rehearing. This order—plainly contradicting the September 27 Order—is both signed and docketed on September 28, 2017 ("September 28 Order").

On October 5, 2017, Burnett filed a motion seeking clarification of the Circuit Court's "competing orders." Target filed no response to Burnett's clarification motion. Rather, on November 8, 2017, Target filed a renewed motion to dismiss Burnett's appeal alleging that, among other things, Burnett failed to file an Application as required by the September 27 Order. Target's motion makes no mention of the "competing" September 28 Order. On November 17, 2017, the Circuit Court's appellate panel entered an order denying Burnett's October 5th motion for clarification. The order states that Burnett has "failed to comply with the court order dated August 28, 2017."¹ Again, this November 17 order vacates neither of the same panel's June 15th orders, nor the September 28 Order denying Target's June 20th Motion for Rehearing.

Finally, on November 29, 2017, a different appellate panel of the Circuit Court entered the challenged unelaborated order granting Target's November 8th renewed dismissal motion. Burnett sought to challenge this November 29, 2017 dismissal order both by appealing the order and petitioning this Court for mandamus relief; we treated Burnett's challenge to the order as a petition seeking certiorari review² and ordered briefing accordingly. With his notice of appeal, Burnett also filed with this Court a Motion to Appear in Forma Pauperis (seeking waiver of the statutorily required filing fee); and we carried this Forma Pauperis motion with the case.

II. Standard of Review

We employ second-tier certiorari review of an order of the circuit court's appellate division dismissing an appeal, Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 396 (Fla. 3d DCA 2009), and grant certiorari relief only when the circuit court has not afforded procedural due process or has violated a clearly established principle of law resulting in a miscarriage of justice. I Creatives Inc. v. Premier Printing Sols., 163 So.3d 606, 607 (Fla. 3d DCA 2015).

Our analysis is guided by two well-settled principles: (i) due process requires giving a litigant reasonable notice of a deadline before that deadline arrives; and (ii) Florida's public policy favors deciding controversies on their merits. Nicaragua Trader Corp., 19 So.3d at 396–97. We are also mindful that dismissal of an appeal is regarded as an extreme sanction and is therefore normally reserved for the most flagrant violations of the appellate rules. See United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004).

III. Analysis

Burnett argues that he was not afforded adequate procedural due process when the Circuit Court...