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Florida Supreme Court Reminds Third District Court of Appeal of Purpose for Writ of Prohibition

On Behalf of | Aug 31, 2022 | Firm News

In Mintz Truppman, P.A. v. Cozen O’Connor, PLC, No. SC20-1225, 2022 Fla. LEXIS 1292, at *5 (Aug. 25, 2022), the Florida Supreme Court recently had an opportunity to address whether a writ of prohibition can used as a vehicle for interlocutory review/redress when a lower tribunal “erroneously exercises” its jurisdiction.  In Mintz, the trial court declined to dismiss a state court action brought to recover attorney’s fees, on the basis of collateral estoppel, where there had been a previous settlement in a United States District Court action which reserved jurisdiction over a remaining disputed issue of attorneys fees.  The Third District Court of Appeal decided that it had “little difficulty concluding that [defendants] [had] established each of the four elements of collateral estoppel[,]” and issued an extraordinary writ, of prohibition, preventing the lower tribunal from further exercising jurisdiction over the matter.  The Third District dismissed, as moot, the petitions to the extent that they sought alternative certiorari relief.

The Florida Supreme Court noted that writs of prohibition are preventive in nature, and not corrective.  Id. at * 5. The Supreme Court went on to note that collateral estoppel is an affirmative defense, just like res judicata and many others, and that the granting of a writ of prohibition here would be a slippery slope where “the writ could be used to end-run our rules on appeals generally and interlocutory appeals in particular.”  Id.  Rather, writs of prohibition are appropriate where “a court has proposed to act in excess of its subject matter jurisdiction.”  Id.  Below, the trial court had acted in a matter over which it indeed had subject matter jurisdiction—defendants simply disagreed with a ruling as to a defense.

Notably, our firm successfully defended an appeal in the Third District in 2021, in which the primary issue was one of judicial estoppel.  There, the Third District treated the issue of application of judicial estoppel as one that was within the trial court’s discretion to apply based on the facts.  Alvarez v. Jimenez, 337 So. 3d 117, 119 (Fla. 3d DCA 2021).  If a trial court has discretion to apply a defense, then it cannot be said that the trial court is exceeding its subject matter jurisdiction by rendering a ruling relative to the defense.  That is not to say that an erroneous trial court ruling cannot be corrected through appropriate appellate review when it makes a mistake as to application of such defense—only that the key is the appropriate vehicle for appellate review.  In fact, some mistakes that are not appealable as non-final orders can and should be reviewed through certiorari writ where there will be harm not remedied by plenary appeal and there is a departure from the essential requirements of law. In Mintz, the Third District will ultimately have a second bite at the proverbial apple, and will get to decide whether certiorari relief should be granted or whether the defendants should be forced to wait until a final judgment is entered and utilize the Florida Rules of Appellate Procedure to appeal from same.  This decision will likely come down to whether there will be sufficient harm should defendants have to wait for a plenary appeal, with the obvious argument being wasted time and effort at trial.  That said, as the Third District has stated: “[W]hile the litigation of a non-issue can be expensive and time-consuming, ‘[t]he authorities are clear that this type of harm is not sufficient to permit certiorari review’.” Banco Latino (S.A.C.A.) v. Kimberly, 979 So. 2d 1169, 1171 (Fla. 3d DCA 2008).

If you need assistance with secondary review of a trial court Order, Jeffrey Law, PA, stands ready to assist. Contact us at: [email protected] or 305.222.7921, to schedule a consultation.

Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 “Top Up and Comer” by South Florida Legal Guide and a “Rising Star” by Superlawyers, in 2022 was designated on the  Super Lawers list, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2022), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating, and various client reviews can be accessed through that platform. See More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at

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