ARCHIE L. KENNINGTON AND NATIONWIDE MUTUAL INSURANCE COMPANY, PETITIONERS,
v.
LEAH ROBBINS GILLMAN AND EZRA PAUL GILLMAN, RESPONDENTS
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Petitioners sought a writ of common law certiorari to challenge the Circuit Court's affirmance of a Small Claims Court judgment, arguing the trial court improperly excluded a cost estimate for vehicle repair. The court denied the petition, holding that certiorari cannot be used as a substitute appeal and that the record contained ample competent evidence supporting the judgment.
The court denied the petition for certiorari, holding that certiorari cannot be used as a substitute for appeal or to provide a second appeal, and that the record contained ample competent substantial evidence supporting the judgment rendered by the trial court.
[1] A writ of common law certiorari is a discretionary writ and cannot be used as a substitute for an appeal or to grant a second appeal.
[2] Evidentiary rulings are generally resolved by the trial court and are reviewable on direct appeal.
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Join FLexlaw to unlock all legal intelligence“It cannot be used as a substitute for an appeal or to give a party a second appeal.”
Establishes that certiorari cannot function as a substitute appellate remedy
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Join FLexlaw to unlock all legal intelligenceThis case involved a dispute over property damage to a motor vehicle. Petitioners sought recovery and offered a cost estimate for repair as evidence o…
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RAWLS, Chief Judge.
By petition for a writ of common law certiorari, petitioners aver that the Circuit Court, sitting as an appellate court in reviewing a direct appeal from the Small Claims Court in and for Bay County, Florida, departed from the essential requirements of law. The thrust of petitioners’ argument is that such departure was occasioned by the Small Claims Court refusing to accept into evidence the cost estimate for repairing a damaged motor vehicle.1
The extraordinary writ of certiorari is highly discretionary on the part of a Superior Court.2 It cannot be used as a substitute for an appeal or to give a party a second appeal. Evidentiary questions are to be resolved by the trial court and its action was properly reviewable on direct appeal by the appellate court. The correctness of the appellate court’s decision is not reviewable in an attempted second appeal by a superior court in the name of certiorari. 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.3 An exa'mination of the record in this cause discloses ample competent substantial evidence to support the judgment rendered.
Petitioner having failed to demonstrate that the error on the part of the appellate court, if there was error, was of such a material, fundamental nature to justify the issuance of the writ, it is the judgment of this Court that certiorari be denied.
JOHNSON, J., and HOWELL, Associate Judge, concur. .The issue in the trial court concerned the amount of property damage to which plaintiff was entitled to recover. Plaintiff insisted that the market value of the damaged chattel before and after the accident was the proper test; defendant insists that their proffer of the cost of repair of the subject chattel should have been considered by the trial court.
. 5 Fla.Jur. Certiorari § 5 (1960) ; and 1 Crandall, Florida Common Law Practice § 472 (1928).
. Cohen v. State, 99 So. 2d 563 (Fla.1957); and Newman v. State, 174 So. 2d 479 (2 Fla.App.1965).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Haines City Cmty. Dev. v. Leila Heggs, 658 So. 2d 523 (Fla. 1995)…tried and determined upon the merits generally as upon [*526] appeal at law or Amt of error.” Id. This explanation, stated another way, importantly emphasizes that certiorari should not be used to grant a second appeal.3 Id.; Kennington v. Gillman, 284 So. 2d 405, 406 (Fla. 1st DCA 1973).4 In Jacksonville, T. & K.W. Railway Co. v. Boy, 34 Fla. 389, 393, 16 So. 290, 291 (1894), we reviewed a circuit court decision affirming a county court judgment, and, while repeating certain language from Basnet, we also s…
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Farren Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000)…departure from the essential requirements of law). As further explained by Judge Altenbernd: It is well-established that certiorari should not be used as a vehicle for a second appeal in a typical case tried in county court. Kennington v. Gillman, 284 So. 2d 405 (Fla. 1st DCA 1973). When issuing this writ, district courts are guided by the bookend discussions in Combs v. State, 436 So. 2d 93 (Fla.1983), and Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla.1995). In essence, the supreme court…
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Stilson v. Allstate Ins. Co., 692 So. 2d 979 (Fla. 2d DCA 1997)…should not have affirmed on direct appeal. II. THE LIMITED STANDARD OF REVIEW IN CERTIORARI It is well-established that certiorari should not be used as a vehicle for a second appeal in a typical case tried in county court. Kennington v. Gillman, 284 So. 2d 405 (Fla. 1st DCA 1973). When issuing this writ, district courts are guided by the bookend discussions in Combs v. State, 436 So. 2d 93 (Fla.1983), and Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla.1995). In essence, the supreme court…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Newman v. State, 174 So. 2d 479 (Fla. 2d DCA 1965)
- Selinsky v. Selinsky, 99 So. 2d 563 (Fla. 1957)
- Cohen v. State, 99 So. 2d 563 (Fla. 1957)