       Third District Court of Appeal
                                 State of Florida

                           Opinion filed March 11, 2015.

                                ________________

                                 No. 3D14-2123
                          Lower Tribunal No. 13-416 AP
                              ________________


                                Villa Lyan, Inc.,
                                     Petitioner,

                                         vs.

                                Veronica Perez,
                                    Respondent.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jennifer D. Bailey, Bertila Soto, and Reemberto Diaz, Judges.

      The Hunker Law Group, P.A., and Thomas L. Hunker, for petitioner.

      Andrew Paul Kawel, for respondent.

Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.

                            CONFESSION OF ERROR
      PER CURIAM.

      Villa Lyan, Inc. (“Villa Lyan”), petitions this Court for a writ of certiorari to

quash two orders of the Circuit Court’s Appellate Division granting Veronica

Perez’s (“Perez”) Motion to Dismiss for Lack of Jurisdiction and granting Perez’s
Motion for Appellate Attorney Fees. Respondent Perez confesses error, and we

agree that the Appellate Division departed from the essential requirements of law

resulting in a miscarriage of justice. Accordingly, we grant Villa Lyan’s petition

for writ of certiorari and quash the two orders below.

I.    FACTUAL AND PROCEDURAL BACKGROUND

      Petitioner, Villa Lyan, is a not-for-profit corporation that provides education

to children with special needs. Villa Lyan employed Perez as a full-time teacher

from January 22, 2013, to June 14, 2013. On August 2, 2013, Perez filed a wage

theft complaint against Villa Lyan with the Miami-Dade County Department of

Regulatory and Economic Resources Business Affairs Division (“Department”),

asserting that Villa Lyan had failed to pay her certain wages. Unsuccessful in its

defense before the Department, Villa Lyan filed a timely notice of administrative

appeal in the Appellate Division of the Eleventh Judicial Circuit Court. Perez

moved to dismiss the appeal, arguing that Villa Lyan’s proper remedy was by way

of certiorari. Perez also filed a separate motion for appellate attorney fees. The

Appellate Division entered an order granting the motion to dismiss and the motion

for appellate attorney fees. Villa Lyan timely filed this petition for second-tier

certiorari seeking review of the Appellate Division’s opinions.             We have

jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2).




                                         2
II.   ANALYSIS

      “The standard governing the disposition of a petition for second-tier

certiorari in a district court is narrow: ‘[T]he district court must determine whether

the decision of the circuit court . . . is a departure from the essential requirements

of law resulting in a miscarriage of justice.’” State, Dep’t of Highway Safety &

Motor Vehicles v. Fernandez, 114 So. 3d 266, 269-70 (Fla. 3d DCA 2013)

(quoting Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712,

725 (Fla. 2012)). “The circuit court’s decision is said to depart from the essential

requirements of law where the circuit court fails to afford procedural due process

or fails to apply the correct law.” Fernandez, 114 So. 3d at 270 (quoting Nader, 87

So. 3d at 722–23).

      Villa Lyan contends that the Appellate Division failed to apply the correct

law when it granted the Motion to Dismiss. In support of its argument, Villa Lyan

cites Florida Rule of Appellate Procedure 9.040(c), which states that “[i]f a party

seeks an improper remedy, the cause shall be treated as if the proper remedy had

been sought; provided that it shall not be the responsibility of the court to seek the

proper remedy.” Furthermore, Villa Lyan asserts that pursuant to both article V,

section 2(a) of the Florida Constitution1 and section 59.45, Florida Statutes (2014),2

1 Article V, section 2(a), of the Florida Constitution reads in relevant part: “The
supreme court shall adopt rules for the practice and procedure in all courts
including . . . a requirement that no cause shall be dismissed because an improper
remedy has been sought.”
2 Section 59.45, Florida Statutes, entitled “Misconception of remedy; Supreme

Court,” specifically states: “If an appeal be improvidently taken where the
                                         3
when a party improperly files a timely notice of appeal, the appellate court cannot

dismiss for lack of jurisdiction, but rather must treat the appeal as a petition for

writ of certiorari.

          A case should not be dismissed because an improper remedy has been

sought, and “Rule 9.040(c) must be complied with by courts acting in their review

capacity.” Elmore v. City of Orange City, 528 So. 2d 997, 998 (Fla. 5th DCA

1988) (citing Pridgen v. Bd. of Cnty. Comm’rs, 389 So. 2d 259 (Fla. 5th DCA

1980)).    Significantly, our sister District Courts have granted certiorari and

quashed appellate division orders that dismissed appeals of administrative orders

because the appellate division’s jurisdiction purportedly had not been properly

invoked. Id. at 998 (quashing appellate division order granting motion to dismiss

on basis that improper remedy had been sought); Ceslow v. Bd. of Cnty. Comm’rs,

Palm Beach Cnty., 428 So. 2d 701, 702 (Fla. 4th DCA 1983) (finding that section

59.45 and Rule 9.040(c) allow a notice of appeal to be considered petition for

certiorari sufficient to invoke the circuit court’s jurisdiction); Swope v. Coryell,

107 So. 2d 153, 155 (Fla. 2d DCA 1958) (holding that circuit court had authority

to utilize section 59.45 to treat appeal as petition for certiorari where appeal was

remedy might have been more properly sought by certiorari, this alone shall not
be a ground for dismissal; but the notice of appeal and the record thereon shall be
regarded and acted on as a petition for certiorari duly presented to the Supreme
Court.” See also Alliance for Conservation of Natural Res. in Pinellas Cnty. v.
Furen, 104 So. 2d 803, 808 (Fla. 2d DCA 1958) (stating that section 59.45 applies
to the Supreme Court, the District Courts of Appeal, and the Circuit Courts in the
exercise of their appellate jurisdiction).

                                         4
improvidently taken and proper review would have been by petition for certiorari);

cf., e.g., Pearce v. Parsons, 414 So. 2d 296, n.1 (Fla. 2d DCA 1982) (considering

as notice of appeal an erroneously filed petition for writ of certiorari).

      Here, the Appellate Division applied the incorrect law by granting Perez’s

motion to dismiss due to the wrong type of relief sought. The fact that Villa Lyan

filed a timely notice of appeal, not a petition for writ of certiorari, cannot result in

the dismissal of the action; this would result in a miscarriage of justice, as any

errors subject to relief in the Circuit Court would be allowed to stand and act as a

total bar to Villa Lyan’s right to an appellate remedy. See Fla. R. App. P. 9.040(c),

(d). The Appellate Division deprived Villa Lyan of a substantive right guaranteed

by statute, rule, case law, and the Florida Constitution when it erroneously

dismissed Villa Lyan’s appeal, rather than treating it as a petition for writ of

certiorari. Accordingly, the order granting the motion to dismiss is quashed.

      Additionally, because Perez no longer qualifies as the “prevailing party”

under section 448.08, Florida Statutes (2012),3 and section 59.46, Florida Statutes

(2010),4 the order granting Perez’s Motion for Appellate Attorney Fees is quashed

as well.

3 Section 448.08, Florida Statutes, specifically states: “The court may award to the
prevailing party in an action for unpaid wages costs of the action and a reasonable
attorney’s fee.”
4 Section 59.46, Florida Statutes, reads: “In the absence of an expressed contrary

intent, any provision of a statute or of a contract entered into after October 1, 1977,
providing for the payment of attorney’s fees to the prevailing party shall be
construed to include the payment of attorney’s fees to the prevailing party on
appeal.”
                                            5
      We grant Villa Lyan’s petition for writ of certiorari and quash both orders of

the Appellate Division granting Perez’s motion to dismiss and motion for appellate

attorney fees.

      PETITION GRANTED; ORDERS QUASHED.




                                         6
