IN RE ESTATE OF ADELE M. LAFLIN. FIRST FIDELITY BANK, N.A., NEW JERSEY, PETITIONER,
v.
DISTRICT COURT OF APPEAL, FOURTH DISTRICT, RESPONDENT
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First Fidelity Bank petitioned for a writ of mandamus after the Fourth District Court of Appeal dismissed its petition for certiorari challenging a probate court ruling that the bank was incompetent to serve as a testamentary trustee. The Florida Supreme Court held that the district court erred in dismissing the petition for lack of jurisdiction merely because First Fidelity failed to file a notice of appeal, and granted the mandamus petition.
The district court of appeal could not dismiss the petition for certiorari for lack of jurisdiction simply because First Fidelity failed to seek the appropriate remedy for appellate review. A petition for certiorari is a proper vehicle for review even where an appeal was the more direct remedy.
[1] A district court of appeal has jurisdiction to consider a petition for certiorari timely filed to review an order which is reviewable by appeal, even if the petitioner fa…
[2] A writ of mandamus is a proper vehicle to compel a lower court to exercise its nondiscretionary jurisdiction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a district court of appeal has jurisdiction to consider a petition for certiorari timely filed therein to review a nonfinal order which is reviewable by appeal even though no notice of appeal was filed in the trial court”
Establishes the core holding that district courts retain jurisdiction over certiorari petitions even when the direct appeal remedy was not pursued
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Join FLexlaw to unlock all legal intelligenceAdele M. Laflin named First Fidelity Bank, an out-of-state bank, as testamentary trustee in her will. After her death, the personal representative sou…
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GRIMES, Justice.
First Fidelity Bank, N.A., New Jersey, petitions this Court for a writ of mandamus to be issued to the District Court of Appeal, Fourth District. We have jurisdiction under article V, section 3(b)(8) of the Florida Constitution.
Adele M. Laflin named First Fidelity Bank as a testamentary trustee in her will. Following her death, her personal representative petitioned the probate court for instructions on whether First Fidelity, as an out-of-state bank, was competent to serve as a trustee of a testamentary trust established by a will probated in Florida. On August 16, 1989, the trial court ruled that First Fidelity was not competent to serve as a trustee under section 660.41, Florida Statutes (1989).
On September 12, 1989, First Fidelity sought review of the decision by filing a petition for common law certiorari with the Fourth District Court of Appeal. The personal representative sought dismissal of the petition because Florida Rule of Probate and Guardianship Procedure 5.100 provides for review of such orders by filing a notice of appeal in the trial court. The district court of appeal dismissed the petition for lack of jurisdiction. The court denied First Fidelity’s motion for clarification, certification, or vacation of the order “on the authority of Lampkin-Asam v. District Court of Appeal, 364 So. 2d 469 (Fla.1978).” First Fidelity then petitioned this Court for a writ of mandamus.
In Skinner v. Skinner, 561 So. 2d 260 (Fla.1990), we recently held that a district court of appeal has jurisdiction to consider a petition for certiorari timely filed therein to review a nonfinal order which is reviewable by appeal even though no notice of appeal was filed in the trial court. Skinner, 561 So. 2d at 262. We also noted that we further receded from the decision in Lampkin-Asam v. District Court of Appeal, 364 So. 2d 469 (Fla.1978), receded from, Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla.1989), to the extent it conflicted with our opinion. While Skinner involved a nonfinal order and the order in the instant case was final for purposes of appeal, this is a distinction without a difference.
We hold that the district court of appeal could not dismiss the petition for certiorari for lack of jurisdiction simply because First Fidelity failed to seek the appropriate remedy for appellate review. Mandamus is a proper vehicle to compel a lower court to exercise its nondiscretionary jurisdiction. Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, Third District, 511 So. 2d 293 (Fla.1987). Therefore, the petition for a writ of mandamus is granted.
It is so ordered.
SHAW, C.J., and OVERTON, McDonald, EHRLICH, BARKETT and KOGAN, JJ., concur.
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Citator
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Hiroaki Kobayashi v. Hollis M. Kobayashi, 777 So. 2d 951 (Fla. 2000)…se to the district court and directing that court to review the trial court’s order denying indigency status); Walsh v. District Court of Appeal, 621 So. 2d 1025 (Fla.1993) (unelaborated reinstatement of appeal via mandamus); In re Estate of Laflin, 569 So. 2d 1273 (Fla.1990) (holding that the district court cannot dismiss a case simply because the petitioner failed to use the proper label for appellate review); Florida Water & Utilities Co. v. Hubbart, 415 So. 2d 1276 (Fla.1982) (unelaborated issuance ' of wr…
Authorities Cited
- R.S. Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989)
- Skinner v. Skinner, 561 So. 2d 260 (Fla. 1990)
- Lampkin-Asam v. Dist. Court OF Appeal, 364 So. 2d 469 (Fla. 1978)
- SKY Lake Gardens Rec., Inc. v. Dist. Court OF Appeal, 511 So. 2d 293 (Fla. 1987)