MARCIN LEWANDOWSKI, P.A.

v.

JOSE FLEMING, CHRISTINA PELLS AND CAPITAL REALTY INVESTMENTS, LLC D/B/A PREFERRED REAL ESTATE BROKERS

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MARCIN LEWANDOWSKI, P.A.,

Petitioner,

v. Case No. 5D20-2747

JOSE FLEMING, CHRISTINA PELLS

AND CAPITAL REALTY INVESTMENTS,

LLC D/B/A PREFERRED REAL ESTATE

BROKERS,

Respondents. ________________________________/

Opinion filed July 9, 2021

Petition for Certiorari Review of Order from the Ninth Judicial Circuit Court, Appellate Division.

Marcin Lewandowski, of Marcin Lewandowski, P.A., Orlando, for Petitioner.

Derek J. Angell, of Bell & Roper, P.A., Orlando, for Respondents.

LAMBERT, C.J.

The petitioner, Marcin Lewandowski, P.A. (“the Firm”), seeks secondtier certiorari relief regarding an order from the Ninth Judicial Circuit Court,

The circuit court dismissed the Firm’s petition for writ of prohibition, concluding that the petition was now moot because “the trial judge has since been reassigned to a new division and is no longer the presiding judge in the underlying case.” The Firm asserts here that this ruling is erroneous and requests that we grant it relief by certiorari. See Sutton v. State, 975 So. 2d 1073, 1078 (Fla. 2008) (holding that a circuit court’s order entered in its appellate capacity on a petition for writ of prohibition in connection with the issue of recusal of a county court judge is reviewable by certiorari). While we agree that the circuit court’s order determining the Firm’s petition for writ of prohibition to be moot was erroneous, we nevertheless deny the petition because the Firm has not shown that the circuit court’s order has resulted in a miscarriage of justice.

The Florida Supreme Court has made it clear that for second-tier certiorari, which is certiorari review by a district court of appeal of an order,

1 The Firm has not asserted that the circuit court failed to afford it procedural due process.

It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law.

Combs v. State, 436 So. 2d 93, 95–96 (Fla. 1983) (citations omitted).

Here, the Firm correctly identified, and the Respondents concede, that a petition for writ of prohibition is not rendered moot as a result of a judicial reassignment because, had the petition been granted, then, under current Florida Rule of General Practice and Judicial Administration 2.330(j), the prior factual or legal rulings made by the disqualified judge may be vacated or amended by the successor judge based upon a timely motion for reconsideration.² See also Pilkington v. Pilkington, 182 So. 3d 776, 778 (Fla. 5th DCA 2015) (“Thus, the potential for reconsideration if a successor judge were to be appointed means the motion and petition [for writ of prohibition] are not moot.”).

Thus, the issue we must resolve is whether the circuit court’s erroneous dismissal of the Firm’s petition for writ of prohibition was such a

2 This rule previously was Florida Rule of Judicial Administration 2.330(h).

Our record shows that five orders were entered by the initial judge that could have been subject to reconsideration by a successor judge. The first quashed service of process against one of the Respondents. The county court subsequently acquired jurisdiction over this Respondent. The second order granted two of the Respondents’ motion to dismiss, but the order acknowledged that, by the time of its entry, the Firm had already filed its second amended complaint. The third order was actually favorable to the Firm as it denied the Respondents’ motion to dismiss the second amended complaint and motion for sanctions. The fourth order granted the Respondents’ stipulation for substitution of counsel. The final order denied the Firm’s motion filed under section 57.105(1), Florida Statutes (2020),

3 We take no position as to whether the petition for writ for prohibition should have been granted as it is unnecessary to our disposition of the petition for writ of certiorari now before us.

We deny the Firm’s petition for writ of certiorari. Simply stated, none of these orders entered by the now-reassigned county court judge that were adverse to the Firm, even if somehow erroneous, were of such significance to have resulted in the requisite miscarriage of justice necessary to support the issuance of a second-tier writ of certiorari.

PETITION DENIED.

EVANDER and SASSO, JJ., concur.