Appellate Jurisdiction & Scope of Review

Appellate Jurisdiction & Scope of Review
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A district court of appeal can exercise either appellate jurisdiction or original jurisdiction. The scope of review can be either broad or narrow, depending on the type of order reviewed and the kind of jurisdiction exercised.

Courts have appellate jurisdiction to review an order or judgment of a lower tribunal where a constitutional provision, statute or rule provides authority to consider appeals from that type of order and that kind of lower tribunal. Appellate review primarily involves final orders or judgments, where the court can conduct a plenary review that is broad in scope. “The court may review any ruling or matter occurring before filing of the notice [of appeal]. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.” Fla. R. App. P. Rule 9.110(h). Jurisdictional, procedural and substantive errors can be corrected on appeal and the order or judgment may be modified, reversed, remanded with directions or affirmed.

Parties in Florida have a constitutional right to seek review of final orders and final judgments. Art. V, § 4(b)(l), Fla. Const. Thus, final appeals are taken “as of right” or “as a matter of right” as long as the notice of appeal is timely filed within the jurisdictional limit of 30 days after the rendition of the order or judgment. Generally, “the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected,” or the order “adjudicates a distinct and severable cause of action.” S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99-100 (Fla. 1974).

Certain non-final (interlocutory) orders can also be appealed as a matter of right under Article V, § 4(b)(1) of the Florida Constitution and Rule 9.130 of the Florida Rules of Appellate Procedure. Some common examples of appealable non-final orders under that rule include those concerning venue, jurisdiction or forum non conveniens. One of the newest additions to the list is a family law order determining that a marital agreement is invalid in its entirety. Fla. R. App. P. Rule 9.130(a)(3)(C)(iii)(c). “Multiple nonfinal orders that are listed in rule 9.130(a) (3) may be reviewed by a single notice if the notice is timely filed as to each such order.” Fla. R. App. P. Rule 9.130(i).

If the non-final order is not on the list in Rule 9.130, the appellate court may still be able to review it by exercising its original jurisdiction under Article V, § 4(b)(3) of the Florida Constitution and Rule 9.030(b) (3) to consider a petition for a common law writ such as a writ of certiorari under Rule 9.100. The scope of review in a certiorari proceeding is limited to deciding whether the lower tribunal departed from the essential requirements of law and if so, the order can be quashed. Before the court can consider that question on the merits, the petitioner must cross the jurisdictional threshold by showing that for the remainder of the trial proceedings, the order would result in a material injury that cannot be corrected on post-judgment plenary appeal.

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“Thus, just as an appellant must establish that a nonfinal order falls within one of the authorized categories in Florida Rule of Appellate Procedure 9.130 before this court has the power to review the merits of the nonfinal order by appeal, a petitioner must establish that an interlocutory order creates material harm irreparable by postjudgment appeal before this court has power to determine whether the order departs from the essential requirements of the law.” Parkway Bank v. Fort Myers Armature Work, 658 So. 2d 646, 649 (Fla. 2d DCA 1995).

“Having determined the nature of the order under consideration we next proceed to ascertain the appropriate method of obtaining review as well as the scope of review available.” De Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957). The scope of review is distinct from the standard of review, which determines the level of deference given to the lower tribunal’s rulings, findings or conclusions when reviewed on appeal. The scope of review relates to matters such as which judicial acts the appellate court can examine and what remedies it can apply. Whereas the scope of review in appeals is broad and many types of error can be corrected, the scope of review in certiorari proceedings is narrowly focused on issues of jurisdiction and the legality or regularity of the procedure, to determine whether the lower court exceeded its jurisdiction or departed from the essential requirements of the law. It is important to determine what type of review to seek and which remedies to request. Robin Bresky

OAS

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