Opinion
Case No. 2D04-1063.
Opinion filed March 18, 2005.
Petition for Writ of Certiorari to the Circuit Court for the Sixth Judicial Circuit for Pinellas County, sitting in its appellate capacity.
Gregory T. Elliott of Elliott-Berger, P.A., St. Petersburg, for Petitioner.
Deborah L. Martohue of Hayes Martohue, P.A., St. Petersburg, for Respondent Beth Manning.
No appearance for Respondent Steve Cornelius.
Cornelius-England Company, Inc., filed a notice of appeal from the circuit court's order dismissing its petition for writ of common law certiorari. This court directed that the case proceed in certiorari. The order from which Cornelius-England sought review in the circuit court was a county court order denying its motion to set aside a default judgment in an eviction action brought by Beth Manning against Steve Cornelius. Certiorari was the proper method for Cornelius-England to seek review because it was not a party to the action in which the order was entered. The standard for "second-tier" certiorari review of a circuit court acting in its appellate capacity is consideration of whether the circuit court afforded the petitioner procedural due process and whether the court applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995). The failure to apply the correct law must be more than a simple legal error in order to warrant the issuance of a writ of certiorari. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000); Hous. Auth. v. Burton, 874 So. 2d 6 (Fla. 2d DCA 2004).
We conclude that Cornelius-England is not entitled to relief because it has failed to demonstrate that the trial court's dismissal of its petition, even if erroneous, resulted in a miscarriage of justice. The record discloses that Cornelius-England had no chance of obtaining the relief it sought from the circuit court. The county court conducted an evidentiary hearing on Cornelius-England's motion to set aside the default judgment of eviction and made detailed factual findings. Cornelius-England challenged those factual findings in its petition to the circuit court. However, no court reporter was present at the evidentiary hearing. Absent a transcript, the circuit court could not have evaluated whether there was any merit to Cornelius-England's claim that the county court's factual findings were unsupported by the record. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Thus, Cornelius-England's petition at best demonstrated to this court that the circuit court should have denied its petition rather than dismissed it. Accordingly, we deny its petition.
Petition for writ of certiorari denied.
CASANUEVA and WALLACE, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.