Sunday, November 29, 2009

Certiorari, Not Appeal, Is Proper Procedure To Seek Review Of Stay Order Entered By Circuit Court In Its Appellate Capacity

In AA Acquisitions, LLC v. Opa-Locka Flightline, LLC (3D09-2059), the Third District issued an opinion on a motion for clarification stating the reasons it dismissed the appeal.  After a stay was entered in the appellate division of the circuit court, "the landlord filed a petition for writ of certiorari in this court, No. 3D09-2166, seeking to vacate the stay. The landlord also filed a notice of appeal of the stay order, which is the case now before us. Another panel of this court denied certiorari. This panel dismissed the appeal. The landlord requests clarification of the reason for dismissal of the appeal."

The court stated:
It is our view that this court’s review of a stay order entered by the appellate division is by certiorari, not by appeal. See USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc, 2009 WL3364974 (Fla. 4th DCA October 21, 2009).
As already stated, this case involves second-tier review. At the second-tier level, review is by certiorari. See Haines City Comty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Philip J. Padovano, supra, § 28:5 at 725-26. The appellate division’s order granting a stay is not an appealable order.


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