MONROE COUNTY, ETC.

v.

KEARNS CONSTRUCTION COMPANY

Third District Court of Appeal

State of Florida

Opinion filed December 31, 2025. Not final until disposition of timely filed motion for rehearing.

No. 3D25-1586 Lower Tribunal No. 24-CA-1134-M

Monroe County, etc., Petitioner,

VS.

Kearns Construction Company, Respondent.

A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J. Koenig, Judge.

Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes and John J. Quick, for petitioner. Robinson Law, P.A., and Raymond L. Robinson and Marisa C. Amer, for respondent.

Before EMAS, LOBREE and BOKOR, JJ.

BOKOR, J.

Monroe County petitions for second-tier certiorari review of the circuit court appellate division's order quashing the Monroe County Board of County Commissioners' bid award and denial of Kearns Construction Company's bid protest. Neither challenged act resulted from a quasi-judicial proceeding of the Board. For the reasons explained below, we grant the instant petition and quash the order of the circuit court appellate division.

1. Background

On August 3, 2024, Monroe County published Request for Proposal No. 568 seeking bidders to deploy construction material for an artificial reef site off the Florida coast. The request specified that each proposal include a certified check or bond as security, and it also reserved the right to waive informalities, errors, and irregularities in the proposal as necessary to "negotiate a contract as may be deemed best for the interests of the County.”

A selection committee was appointed to evaluate the proposals and formulate a recommendation for the Board. The committee ranked the proposals and eventually recommended accepting a bid from Biscayne Towing & Salvage. Kearns, the second-ranked bidder, protested. Kearns argued that the recommended bid was non-conforming because it failed to include the name or signature of the surety on the attached bond.

On October 16, 2024, the Board held a public meeting. During that

meeting, a representative of Kearns explained why the contract should not be awarded as recommended. An attorney for the County responded, opining that the recommended bid's defect had been cured by submitting a cashier's check and that the Board had discretion to award the contract as recommended under relevant law and the terms of the Request for Proposal. The Board voted to award the contract as recommended. The Board heard from no sworn witnesses, took no evidence, and made no factual findings or legal conclusions.

On November 8, 2024, Kearns petitioned for certiorari in the circuit court appellate division, naming the County as respondent. The County moved to dismiss for lack of jurisdiction, but the court denied the motion, citing Biscayne Marine Partners LLC v. City of Miami, 273 So. 3d 97, 100 (Fla. 3d DCA 2019), for the proposition that the Board's “adverse ruling on a bid protest may be challenged by filing a petition for writ of certiorari.”

On June 27, 2025, the court granted the petition for certiorari, ruling that the Board departed from the essential requirements of law after a quasijudicial hearing. On July 14, 2025, the County moved for rehearing and clarification; the court denied rehearing and clarified only that its writ had quashed both the County's rejection of Kearns' bid protest and the award to Biscayne Towing & Salvage. The County now petitions this court for secondtier certiorari review of the circuit court appellate division's order. II. Analysis

Review on second-tier certiorari inquires only whether “the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). A court has no power to act without jurisdiction. See State ex rel. West's Drug Stores v. Cornelius, 149 So. 332, 332 (Fla. 1933). And while the appellate division of a circuit court has jurisdiction to review acts of a local agency, board, or commission, see Teston v. City of Tampa, 143 So. 2d 473, 476 (Fla. 1962), “only quasi-judicial actions are reviewable via certiorari.” Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 843 (Fla. 2001).

So if the action reviewed by certiorari below was not quasi-judicial, then the circuit court violated a clearly established principle of law by reviewing the decision via certiorari in its appellate capacity. And reviewing an executive decision of a governmental agency the same way a court would review a quasi-judicial decision would result in a miscarriage of justice. This is so because it would allow the judiciary to review a clearly executive function under the guise of error correcting a quasi-judicial decision in violation of separation of powers principles and public policy. As the Florida

Supreme Court explained:

In Florida ... a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982); see also Dep't of Transp. v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988) (applying Liberty County and noting Florida's policy of deferring to governmental decisions in competitive bidding situations absent a “finding of illegality, fraud, oppression, or misconduct"). This court has held that an unsuccessful competitive bidder for a county contract cannot seek certiorari review of such a decision because "such an award is the exercise of an executive function, rather than a quasijudicial act subject to certiorari review by the Appellate Division” of the circuit court. MRO Software, Inc. v. Miami-Dade County, 895 So. 2d 1086, 1086 (Fla. 3d DCA 2004); see also Charles M. Schayer & Co. v. Bd. of Cnty. Comm’rs of Dade Cnty., 188 So. 2d 871, 871 (Fla. 3d DCA 1966) (holding that certiorari did not lie where Dade County Board of Commissioners failed to award lease to highest bidder because the choice “was not judicial or quasi-judicial"). But we must look to the procedure employed here to determine whether the underlying act was judicial or quasi-judicial.

The Florida Supreme Court's opinion in De Groot v. Sheffield outlines what distinguishes a quasi-judicial function: “[W]hen notice and a hearing are required and the judgment of the board is contingent on the showing made at the hearing, then its judgment becomes judicial or quasi-judicial.” 95 So. 2d 912, 915 (Fla. 1957). Here, nothing suggested that the Board's vote hinged on any evidentiary showing by the successful bidder or by Kearns in protest of the recommended award. In examining the characteristics of a properly noticed public hearing, as opposed to a quasi-judicial hearing, our sister court noted the lack of sworn testimony and cross-examination of adverse witnesses:

While there was a public hearing upon notice, a quasi-judicial type of hearing was neither contemplated nor conducted. About all that happened was that appellees' representative made some unsworn statements in support of the application and the county attorney responded with opinions of his own. review by certiorari was an inappropriate remedy.

Therefore, a

Bd. of Cnty. Comm’rs of Hillsborough Cnty. v. Casa Dev. Ltd., II, 332 So. 2d 651, 654 (Fla. 2d DCA 1976). And that's the same situation before us. A public meeting occurred, a representative of a party made unsworn statements in support of the party's position, and a county attorney responded with opinions of his own. The Board then made the ultimate decision, through a process that neither required the development of a factual record nor contemplated cross-examination.

Kearns, and the circuit court's order on review, relied on Biscayne Marine Partners v. City of Miami, 273 So. 3d 97 (Fla. 3d DCA 2019), for the proposition that the Board's vote constituted a quasi-judicial act. Though Biscayne Marine involved a challenge to a portion of a procurement process, the facts differ. There, the City of Miami Code created a different procurement and bid protest procedure from the one here. See id. at 100 (explaining that “a City-appointed hearing officer heard Biscayne Marine's bid protest and ... entered an order denying the bid protest and affirming the recommendation of the City Manager to award the bid" to the recommended bidder); see also § 18-104, City of Miami Code (establishing bid protest procedure). The city code established a quasi-judicial bid protest process before a hearing examiner and a right to appeal under the Florida Rules of Appellate Procedure. § 18-104(b), City of Miami Code. And that's what the petitioner in Biscayne Marine challenged—the quasi-judicial process before the hearing examiner and the resulting order. See Biscayne Marine, 273 So. 3d at 100 (“Biscayne Marine challenged the Hearing Officer's order by timely filing a petition for a writ of certiorari with the Miami- Dade County Circuit Court's Appellate Division.”). Biscayne Marine was not a challenge to the award by the city commission.

The Monroe County Code contains no similar hearing examiner

process to examine a bid protest. See §§ 2-346–2-347, Monroe County Code. Here, there was no quasi-judicial determination by a hearing examiner. Instead, Kearns challenges the award by the Board. And that is an executive function, even though the protesting bidder was allowed to make its case in the context of a presentation at a public hearing. See MRO Software, 895 So. 2d at 1086 (denying relief because “such an award is the exercise of an executive function” and explaining that under the Miami-Dade County Code the public hearing and orderly presentation by the recommended bidder and opposing parties, including a protesting bidder, does not transform the function into a “quasi-judicial act subject to certiorari review”); Casa Dev. Ltd., II, 332 So. 2d at 654.

We do not comment on the merits of a proper and timely legal challenge to the award through the filing of legal or declaratory relief in a trial court of competent jurisdiction. See, e.g., Cent. Fla. Equip. Rentals of Dade Cnty., Inc. v. Lowell Dunn Co., 586 So. 2d 1171, 1172 (Fla. 3d DCA 1991) ("LDC sued Central and Dade County to enjoin Central from proceeding with the project . . . .”); Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs, 955 So. 2d 647, 650 (Fla. 1st DCA 2007) (“[A]ppellant filed a six-count complaint challenging the County's award . . . ."). But a circuit court sitting in its appellate capacity is not the place. The circuit court, having granted

certiorari review of an act that was not quasi-judicial, violated clearly established jurisdictional principles. This is so because a court's proper exercise of jurisdiction is a principle “so rudimentary to our system of jurisprudence as to be beyond debate.” Hardman v. Koslowski, 135 So. 3d 434, 436 (Fla. 1st DCA 2014); see also Llanso v. Gomez de Cordova, 263 So. 3d 137, 140 (Fla. 3d DCA 2018) (“[A]n order entered without jurisdiction is a nullity, and cannot be considered harmless error.” (quotation omitted)).

III. Conclusion

The circuit court appellate division lacked jurisdiction to consider this matter through certiorari review. For the reasons explained, we therefore grant the petition and quash the order. Petition granted; order quashed.