ROBERT E. DOOLEY AND ANN M. DOOLEY, PETITIONERS,
v.
CHARLES H. CULVER, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A landlord sought damages from a tenant for increased insurance rates allegedly caused by the tenant's business operations. The county court entered default against the tenant, but the circuit court vacated the default and awarded the tenant attorney's fees. The district court affirmed the vacation of default but quashed the award of attorney's fees, finding no contractual or statutory basis to award fees to the tenant.
The court affirmed the vacation of the default judgment, as Florida policy favors liberality in vacating defaults so that the merits may be reached. However, the court quashed the award of attorney's fees, finding the circuit court lacked authority to award fees to the tenant because the lease contained no provision authorizing such fees and no statute granted that right for non-residential tenants.
[1] A circuit court sitting in its appellate capacity has final appellate jurisdiction over county court cases, which cannot be circumvented by further appeal or certiorari.
[2] Review by certiorari of a circuit court order entered in its appellate capacity requires more than a demonstration of mere error; it requires a departure from essential r…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.”
Establishes the stringent standard for certiorari review of final appellate decisions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLandlords filed suit in county court against their tenant for damages due to increased insurance rates allegedly caused by the tenant's business opera…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Petition For Writ Of Certiorari cases and more on FLexlaw
HERSEY, Judge.
This petition for writ of certiorari seeks review of an order of the circuit court entered in its appellant capacity.
Petitioners (landlords) filed a complaint in county court seeking damages allegedly incurred by reason of increased insurance rates directly attributable to the operation of tenant’s business. Pursuant to the lease, any such increased rates were to be paid by tenant.
Tenant filed a motion to dismiss the complaint and on July 12, 1978, the court entered an order denying the motion and allowing tenant ten (10) days to file his answer. On July 28, 1978, landlord filed a motion for default on the basis that no answer had been filed. Default was then entered by the court on July 31, 1978. On August 2, 1978, tenant moved to vacate the order of default, alleging non-receipt of the July 12th order. Tenant also alleged a meritorious defense, stating that his answer would allege that the lease between the parties was void and would deny the allegations of the complaint concerning the reason for an increase in insurance premiums. The trial court denied this motion and, upon landlord’s affidavit of damages, entered a final judgment in favor of landlord.
Tenant appealed to the circuit court which vacated the order of default and final judgment, finding that the county court had abused its discretion in entering the default. The circuit court further ordered that “a reasonable attorney’s fee shall be granted Appellant [tenant] and against Ap-pellees, the amount of which shall be subject to review by this Court.”
The circuit court is vested with final appellate jurisdiction over county court cases and this finality cannot be circumvented by the device of a further appeal or certiorari. Griffin v. State, 367 So. 2d 736 (Fla. 4th DCA 1979). Review by certiorari of. an order entered by a circuit court sitting in its appellate capacity requires more than a demonstration of mere error. Griffin v. State, supra, Magnus v. Century Village, Inc., 379 So. 2d 145 (Fla. 4th DCA 1980). As stated in Kennington v. Gillman, 284 So. 2d 405 (Fla. 1st DCA 1973) and quoted in Magnus v. Century Village, supra, at 146:
It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.
Petitioners have not demonstrated that the circuit court committed such error in vacating the default. Florida has a long standing policy of liberality towards the vacation of defaults, so that the merits of a cause may be reached. Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978).
However, in awarding attorney’s fees, the circuit court did commit fundamental error. Allowance of attorney’s fees is in derogation of the common law. Accordingly, attorneys’ fees may be awarded only if provided for by contract or statute. Stone v. Jefferies, 208 So. 2d 827 (Fla.1968). The rental agreement involved here contains a provision allowing attorney’s fees to landlord when he is required to institute suit for the collection of rent. There is no provision authorizing attorney’s fees to tenant under any circumstances. In the case of residential rentals, Section 83.48, Florida Statutes (1979) converts a provision which permits the landlord to recover his attorney’s fees from a defaulting tenant into a reciprocal right to attorney’s fees in a tenant who prevails in litigation involving his tenancy. No such statute exists for the benefit of the tenant of non-residential property. Thus, the circuit court was without authority to award attorney’s fees.
Accordingly, as to the award of attorney’s fees, we grant the petition for writ of certiorari and quash the judgment of the circuit court; as to vacation of the default, we deny the petition.
BERANEK and HURLEY, JJ., concur,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hayman v. State, 634 So. 2d 1097 (Fla. 2d DCA 1994)…e same court that entered the final judgment and sentence. Second, our authority to review final orders rendered by the circuit court in its appellate capacity is limited to review by common law certiorari. See Fla.R.App.P. 9.100; Dooley v. Culver, 392 So. 2d 575 (Fla. 4th DCA 1980); City of Winter Park v. Jones, 392 So. 2d 568 (Fla. 5th DCA 1980). Arguably, a nonfinal order entered by a circuit court in its appellate capacity could be reviewed by common law certiorari. Assuming that to be the case, Mr. Haym…
-
Police Pension Bd. v. Neilson, 435 So. 2d 325 (Fla. 4th DCA 1983)…e emphasize that we are not here concerned with whether there was substantial competent evidence); and (2) whether there were material fundamental errors in applying the law (which requires more than a demonstration of mere error). Dooley v. Culver, 392 So. 2d 575 (Fla. 4th DCA 1980). The numbered phrases define the two aspects of the term “essential requirements of the law” that frequently appear in the jurisprudence. Put another way, after examining for procedural due process we determine whether the circui…
-
Walgreen Co. v. Catlin, 650 So. 2d 94 (Fla. 3d DCA 1995)…ke such a determination nor will we substitute our judgment for that of the appellate court. Accordingly, we accept jurisdiction, allow the writ, and quash the attorney’s fees order for the reasons stated herein and on authority of Dooley v. Culver, 392 So. 2d 575 (Fla. 4th DCA 1980). It is so ordered.…
Authorities Cited
- Stone v. Jeffres, 208 So. 2d 827 (Fla. 1968)
- State v. Camper, 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 (Fla. 4th DCA 1978)
- Neely Horton Griffin v. State, 367 So. 2d 736 (Fla. 4th DCA 1979)
- Colon v. State, 284 So. 2d 405 (Fla. 3d DCA 1973)
- Kennington v. Gillman, 284 So. 2d 405 (Fla. 1st DCA 1973)
- Bruno O. Weinschel v. Weinschel, 379 So. 2d 145 (Fla. 3d DCA 1980)
- Magnus et ux. v. Century Vill., Inc., 379 So. 2d 145 (Fla. 4th DCA 1980)