DEPARTMENT OF EDUCATION, PETITIONER,
v.
SALLY ROE, A MINOR CHILD, BY AND THROUGH HER MOTHER AND NEXT FRIEND, ANN ROE, AND ANN ROE, INDIVIDUALLY, RESPONDENTS
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The Florida District Court of Appeal reconsidered its prior opinion reversing a trial court's denial of the Department of Education's motion to dismiss. Upon rehearing, the court withdrew its previous opinion and denied certiorari review, holding that denial of a motion to dismiss does not ordinarily qualify for certiorari review and that Tucker v. Resha did not support treating sovereign immunity denials as appealable interlocutory orders.
The court held that it should not construe Tucker v. Resha beyond its specific holding regarding qualified immunity under 42 U.S.C. § 1983, and that denial of a motion to dismiss does not ordinarily qualify for certiorari review. The petition for certiorari was therefore denied.
[1] A petition for writ of common law certiorari is not the proper vehicle to review an order denying a motion to dismiss.
[2] Denial of a motion to dismiss does not ordinarily qualify for certiorari review.
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Join FLexlaw to unlock all legal intelligence“denial of a motion to dismiss does not ordinarily qualify for certiorari review”
Establishes the controlling legal principle for when interlocutory review of motion to dismiss denials is appropriate
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Join FLexlaw to unlock all legal intelligenceThe Department of Education moved to dismiss Sally and Ann Roe's amended complaint, asserting that Roe had failed to allege a duty owed by the Departm…
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[Original Opinion at 20 Fla.L. Weekly D686]
ERVIN, Judge.
Respondents seek rehearing, rehearing en banc, certification of conflict, and clarification of our opinion issued March 14, 1995, which reversed the trial court’s denial of petitioner’s motion to dismiss Roes’ amended complaint, with prejudice, because Roe failed to allege a duty that the Department of Education owed to her. Department of Education v. Roe, 20 Fla. L. Weekly D686 (Fla. 1st DCA Mar. 14, 1995). We grant respondents’ motions for rehearing, withdraw our previous opinion, and substitute the following revised opinion. Because of this disposition, we deny respondents’ motions for rehearing en bane and for certification of conflict.
The Department of Education filed a petition for writ of common law certiorari, seeking review of the trial court’s order denying its motion to dismiss Sally and Ann Roe’s amended complaint, relying in part upon Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), as supporting its contention that this court had jurisdiction. We agreed, and construed the petition as an appeal from an interlocutory order, concluding that the principle stated in Tucker, that denial of a claim of qualified immunity in response to a cause of action under 42 U.S.C. § 1983 was an appealable nonfinal order, applied as well to denial of a claim of sovereign immunity regarding a cause of action under state law. We are now of the view that we should not construe Tucker as deciding any issue beyond that which was specifically asked in the certified question in that ease. Therefore, we decline to construe the petition for certiorari relief as an interlocutory appeal. Moreover, denial of a motion to dismiss does not ordinarily qualify for certiorari review. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987); Fieselman v. State, 566 So. 2d 768 (Fla.1990).
CERTIORARI DENIED.
JOANOS and WOLF, JJ., concur.
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Citizens Prop. Ins. Corp. v. SAN Perdido Ass'n, Inc., 104 So. 3d 344 (Fla. 2012)…nal order, filing a petition for a writ of common law certiorari. Id. The First District ultimately denied relief, summarily concluding that a “denial of a motion to dismiss does not ordinarily qualify for cer-tiorari review.” Dep’t of Educ. v. Roe, 656 So. 2d 507, 508 (Fla. 1st DCA 1995). On review, we affirmed and held that the reasoning in Tucker did not extend beyond the circumstances of that case to apply to every order that rejected a claim involving sovereign immunity. Roe, 679 So. 2d at 759. Once agai…
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Dep't OF Educ. v. ROE, 679 So. 2d 756 (Fla. 1996)…GRIMES, Justice. We have for review Department of Education v. Roe, 656 So. 2d 507 (Fla. 1st DCA 1995), which expressly and directly conflicts with the opinion in Department of Transportation v. Wallis, 659 So. 2d 429 (Fla. 5th DCA 1995). We have jurisdiction. Art. V, § 3(b)(8), Fla. Const. In Tucker v. Resha, 648 So. 2d 1187 (Fl…1 / 2
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Dep't OF Transp. v. Wallis, 659 So. 2d 429 (Fla. 5th DCA 1995)…jority opinion in this case, allows an appeal in circumstances the federal courts would deny, and thus goes beyond the rationale of Tucker. I agree with the First District Court of Appeal’s resolution of this issue in Department of Education v. Roe, 656 So. 2d 507 (Fla. 1st DCA 1995). The majority has reached the opposite conclusion. At least, we should certify to the Florida Supreme Court a conflict1 between Roe and this case. . Fla.R.App.P. 9.030(2)(A)(vi).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994)
- Fieselman v. State, 566 So. 2d 768 (Fla. 1990)