       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 28, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2625
                    Lower Tribunal Nos. 15-15320 & 17-165
                             ________________


                               Shane Burnett,
                                    Petitioner,

                                         vs.

                            Target Corporation,
                                   Respondent.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Sarah I. Zabel, Valerie R. Manno Schurr, and Monica Gordo, Judges.

      Shane Burnett, in proper person.

       Bowman & Brooke, LLP, and Stephanie M. Simm and Shawn Y. Libman,
for respondent.

Before SUAREZ, LAGOA and SCALES, JJ.

      SCALES, J.

      Petitioner Shane Burnett seeks second-tier certiorari review of an order

by the Appellate Division of the Miami-Dade Circuit Court (“Circuit Court”)
dismissing his appeal of an order rendered against him by the Miami-Dade County

Court’s Small Claims Division. We grant Burnett’s petition because the circuit

court dismissed Burnett’s appeal without affording him the requisite procedural

due process.

      I. Relevant Facts and Procedural Background

      In April of 2017, Burnett appealed to this Court an order of the Miami-Dade

County Court Small Claims Division dismissing, with prejudice, Burnett’s

Statement of Claim against Target Corporation (case number 3D17-994).

Contemporaneously with his notice of appeal, Burnett filed with this Court a

Motion to Appear in Forma Pauperis, seeking, pursuant to Florida Rule of

Appellate Procedure 9.430, a waiver of the statutorily required appellate filing

fee. Without    ruling   on   Burnett’s   Forma     Pauperis   motion,    we,    sua

sponte, transferred Burnett’s appeal, including Burnett’s Forma Pauperis motion,

to the Circuit Court.

      In May of 2017, Burnett filed his initial appellate brief in the Circuit Court,

and Target responded by filing a June 5, 2017 motion to dismiss Burnett’s appeal.

Target’s dismissal motion asserted, among other things, that Burnett’s appeal

should be dismissed for Burnett’s failure to pay the $287.00 filing fee for the

appeal. On June 15, 2017, the appellate panel of the Circuit Court entered two

separate orders: (i) an order granting Burnett’s Motion to Appear in Forma



                                          2
Pauperis; and (ii) a related order denying Target’s motion to dismiss Burnett’s

appeal.

      On June 20, 2017, Target then filed a detailed Motion for Rehearing,

arguing that the Circuit Court should not have granted Burnett’s Forma Pauperis

motion. Target argued that Burnett had failed to complete the required Application

for Determination of Civil Indigent Status (“Application”) and that Burnett had

filed some eighteen civil cases during the preceding two years, paying thousands

of dollars in filing fees. Target further argued that the Circuit Court failed to take

into consideration that, in the same two-year period, Burnett had been declared

indigent in only three of twenty-five criminal matters in which Burnett had been

named as a defendant.

      It appears that on August 28, 2017, the appellate panel of the Circuit

Court signed an order granting Target’s June 20th rehearing motion. The panel

checked the “Granted” box in the form order; then the order states: “Appellant

shall file the Application for Determination of Civil Indigent Status within thirty

(30) days of the date of this order. Failure to do so may result in the granting of

motion to dismiss appeal.” This order does not vacate either of the June 15th

orders;   and,   oddly,   both   this   order, and   the   Circuit   Court’s   docket

sheet, indicate that this order was not docketed by the Circuit Court until

September 27, 2017 (“September 27 Order”).



                                          3
      Then, prior to the expiration of the thirty days referenced in the September

27 Order (regardless of whether this 30 days is calculated from August 28 or

September 27), the same appellate panel signed an unelaborated order denying

Target’s June 20th Motion for Rehearing. This order – plainly contradicting the

September 27 Order – is both signed and docketed on September 28, 2017

(“September 28 Order”).

      On October 5, 2017, Burnett filed a motion seeking clarification of the

Circuit Court’s “competing orders.” Target filed no response to Burnett’s

clarification motion. Rather, on November 8, 2017, Target filed a renewed motion

to dismiss Burnett’s appeal alleging that, among other things, Burnett failed to file

an Application as required by the September 27 Order. Target’s motion makes no

mention of the “competing” September 28 Order. On November 17, 2017, the

Circuit Court’s appellate panel entered an order denying Burnett’s October 5th

motion for clarification. The order states that Burnett has “failed to comply with

the court order dated August 28, 2017.”1 Again, this November 17 order vacates

neither of the same panel’s June 15th orders, nor the September 28 Order denying

Target’s June 20th Motion for Rehearing.



1While neither the record nor the Circuit Court’s docket sheet makes reference to
an earlier order adjudicating Burnett’s October 5th clarification motion, the Circuit
Court’s docket sheet contains an October 23, 2017 entry indicating that an order
denying Burnett’s clarification motion was received by return mail on this date.

                                         4
         Finally, on November 29, 2017, a different appellate panel of the Circuit

Court entered the challenged unelaborated order granting Target’s November 8th

renewed dismissal motion. Burnett sought to challenge this November 29, 2017

dismissal order both by appealing the order and petitioning this Court for

mandamus relief; we treated Burnett’s challenge to the order as a petition seeking

certiorari review2 and ordered briefing accordingly. With his notice of appeal,

Burnett also filed with this Court a Motion to Appear in Forma Pauperis (seeking

waiver of the statutorily required filing fee); and we carried this Forma Pauperis

motion with the case.

         II. Standard of Review

         We employ second-tier certiorari review of an order of the circuit court’s

appellate division dismissing an appeal, Nicaragua Trader Corp. v. Alejo Fla.

Props., LLC, 19 So. 3d 395, 396 (Fla. 3d DCA 2009), and grant certiorari relief

only when the circuit court has not afforded procedural due process or has violated

a clearly established principle of law resulting in a miscarriage of justice. I

Creatives Inc. v. Premier Printing Sols., 163 So. 3d 606, 607 (Fla. 3d DCA 2015).

         Our analysis is guided by two well-settled principles: (i) due process

requires giving a litigant reasonable notice of a deadline before that deadline

arrives; and (ii) Florida’s public policy favors deciding controversies on their


2   See Fla. R. App. P. 9.040(c).

                                          5
merits. Nicaragua Trader Corp.,19 So. 3d at 396-97. We are also mindful that

dismissal of an appeal is regarded as an extreme sanction and is therefore normally

reserved for the most flagrant violations of the appellate rules. See United Auto.

Ins. Co. v. Total Rehab & Med. Ctr., 870 So. 2d 866, 869 (Fla. 3d DCA 2004).

      III. Analysis

      Burnett argues that he was not afforded adequate procedural due process

when the Circuit Court dismissed his appeal because the Circuit Court’s

conflicting orders failed to provide the requisite notice that his appeal would be

dismissed if he did not complete the Application.

      While not clear from the Circuit Court’s unelaborated November 29th

dismissal order, it appears the Circuit Court dismissed Burnett’s appeal because

Burnett failed to complete the Application as required by the September 27 Order

granting Target’s June 20th rehearing motion. Yet, three Circuit Court orders belie

any such requirement: (i) the June 15, 2017 order granting Burnett’s motion to

appear in Forma Pauperis, (ii) the related June 15, 2017 order denying Target’s

motion to dismiss Burnett’s appeal for failure to pay a filing fee, and (iii) the

September 28 Order expressly denying Target’s June 20th rehearing motion

directed toward these June 15, 2017 orders. Even when the inconsistency between

the September 27 Order and these three orders was specifically brought to the




                                         6
attention of the Circuit Court by Burnett’s October 5th Motion for Clarification,

none of these three orders was ever vacated by the Circuit Court.

      Thus, Burnett was put in the unenviable position of having to divine: (i)

whether his Forma Pauperis motion “remained” granted, (ii) which Circuit Court

orders were effective, and (iii) which Circuit Court orders were erroneous or

impliedly had been set aside. Because the September 28 Order – plainly denying

Target’s June 20 rehearing motion – was rendered after the September 27 Order

purportedly granting Target’s June 20th rehearing motion (and containing the

requirement that Burnett complete the Application within thirty days), and because

this September 28 Order was never vacated by the Circuit Court, it was not entirely

unreasonable for Burnett to conclude that the Circuit Court simply had revisited its

earlier September 27 Order, and was denying Target’s June 20th rehearing motion.

      While on this record we cannot be certain, the Circuit Court’s September 28

Order probably was erroneous and entered accidentally; and, to be on the safe side,

Burnett either should have paid the filing fee or completed the Application,

especially because Burnett’s initial briefing of his appeal was complete. Given the

unique circumstances of this case, however, as well as the confusion caused by the

Circuit Court’s “competing orders,” Burnett’s due process argument is well taken.

      If it were the Circuit Court’s desire for the parties to ignore the September

28 Order, or for that order to have no force and effect, the Circuit Court should



                                         7
have – either sua sponte or as part of its adjudication of Burnett’s October 5th

Motion for Clarification – vacated or otherwise set aside the order. The September

28 Order, though, was not set aside; and because this September 28 Order

materially conflicted with the September 27 Order, we conclude that the Circuit

Court did not provide reasonable notice that Burnett’s appeal would be dismissed

if Burnett did not complete the Application. Burnett’s appeal was therefore

dismissed without affording Burnett the requisite procedural due process. See I

Creatives, 163 So. 3d at 608.

      IV. Conclusion

      We therefore grant the petition, quash the November 29, 2017 dismissal

order, and remand for further proceedings.3




3We   also grant Burnett’s December 7, 2017 Motion to Appear in Forma Pauperis
filed with this Court in conjunction with this case, which motion we carried with
the case’s merits. Our adjudication of this December 7th motion, however, should
not be construed as adjudicating or opining upon Burnett’s May 2017 Motion to
Appear in Forma Pauperis, initially filed in this Court in case number 3D17-994
and transferred to the Circuit Court.

                                        8
