           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4382
                  _____________________________

AMALGAMATED TRANSIT UNION,
LOCAL 1579,

    Petitioner,

    v.

CITY OF GAINESVILLE,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                        February 15, 2019


WOLF, J.

     Amalgamated Transit Union, Local 1579 (Union), seeks
certiorari review of a trial court order vacating an arbitration
award and remanding the matter for a new arbitration before a
different arbitrator. We find that we have jurisdiction, grant the
petition, and quash the trial court’s order. We also certify conflict
with the Third, Fourth, and Fifth Districts, which have
determined that appellate courts do not have jurisdiction over a
petition for writ of certiorari seeking review of a trial court order
vacating an arbitration award and ordering a new arbitration.

                               FACTS

   In 2015 the City of Gainesville (City) terminated the
employment of a bus driver, who was a member of the Union, for
slapping the hands of passengers on two separate occasions in
violation of two of the City’s Rules. The Union filed a grievance
with the City, and the parties ultimately submitted the matter to
a mutually selected arbitrator.

     At the arbitration hearing, both parties presented evidence
including videos of the two incidents, witness testimony, the
driver’s employment records, and the City’s policies and rules.
The arbitrator issued his ruling in November 2016, finding the
driver had not violated either Rule and ordering the City to
reinstate the driver with back pay.

     In February 2017, the City filed a petition to vacate the
arbitration award in the circuit court. The circuit court held an
evidentiary hearing and found the arbitrator displayed evident
partiality by finding the driver did not violate the Rules and
improperly commenting on the age and demeanor of the
passengers involved in the altercations. The court also found that
the arbitrator exceeded the scope of his authority by rendering an
award beyond the scope of the collective bargaining agreement.
The circuit court ordered the parties to undergo a new arbitration
proceeding before a different arbitrator. The Union filed a
petition for writ of certiorari in this court challenging that ruling.

                       STANDARD OF REVIEW

     It is well settled that to obtain a writ of certiorari, a party
must show there is “(1) a departure from the essential
requirements of the law, (2) resulting in material injury for the
remainder of the case (3) that cannot be corrected on
postjudgment appeal.” Reeves v. Fleetwood Homes of Florida, Inc.,
889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v. Snyder,
826 So. 2d 382, 387 (Fla. 2d DCA 2002)). The irreparable harm
requirement is jurisdictional, and if a petitioner fails to establish
irreparable harm, then the appellate court must dismiss the
petition. See Loewenstein, Inc. v. Draheim, 898 So. 2d 1129, 1130
(Fla. 4th DCA 2005) (dismissing petition for writ of certiorari
because the petitioner failed to establish irreparable harm).




                                  2
                          JURISDICTION

     We have jurisdiction, as we have previously held that a trial
court’s order vacating an arbitration award and remanding the
matter for a new arbitration constitutes irreparable harm. Heart
Surgery Ctr. v. Thomas J. Bixler, II, M.D., P.A., 128 So. 3d 169
(Fla. 1st DCA 2013); Felger v. Mock, 65 So. 3d 625 (Fla. 1st DCA
2011). As we stated in Felger, an order vacating an arbitration
award and ordering a rehearing before another arbitration panel
has the same effect as an order granting a motion for new trial
and warrants review for the same reasons. 65 So. 3d at 628.

     Three of our sister courts have held that certiorari
jurisdiction does not exist to review a trial court’s order vacating
an arbitration award and requiring the parties to undergo
another arbitration proceeding. Miami-Dade Cty. v. King, 176 So.
3d 373, 374 (Fla. 3d DCA 2015); Loewenstein, 898 So. 2d at 1130;
Zabawa v. Penna, 868 So. 2d 1292 (Fla. 5th DCA 2004).

     Each of these cases appear to be based, in part, on the idea
that the time and expense of additional proceedings is not the
type of irreparable harm that is required to invoke the certiorari
jurisdiction of an appellate court. We certify conflict with these
cases and reject their holdings for three reasons.

     First, requiring a party to go through a second evidentiary
proceeding is qualitatively different from simply requiring a
party to continue with an initial merits proceeding. A second
merits proceeding requires potentially unnecessary repetition
and may result in inconsistent determinations that would call
into question a trial court’s proper role in reviewing an
arbitration reward. In Felger, we correctly analogized a trial
court order vacating an arbitration award and mandating a
second arbitration with an order granting a motion for new trial.
65 So. 3d at 627-28. More is involved than simply the time and
expense of additional proceedings.

     Second, while case law has rejected the idea that an order
vacating an arbitration award and requiring an additional
arbitration is a final appealable order, such as in City of Fort
Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So. 2d
162, 162–63 (Fla. 4th DCA 1991), no more judicial labor needs to
                                 3
be done in relation to a vacated final arbitration award,
regardless of whether it is sent for a new arbitration. Any further
judicial labor on the part of the trial court will be directed to the
second arbitration proceeding. Thus, while precedent prevents us
from reviewing the trial court’s order as an appealable final
order, it should be subject to some form of review by an appellate
court. 1

     Finally, petitioner persuasively argues that by not providing
for some review of trial court orders vacating an arbitration
award and ordering a new arbitration, we are not providing
deference to the alternative dispute resolution process. Florida
has long held that arbitration is a contracted for agreement that
ensures an alternative to litigation designed to limit litigation
and promote finality. See, e.g., Visiting Nurse Ass’n of Florida,


    1  All of the federal circuit courts that have addressed this
issue have held they have jurisdiction to review a federal district
court’s order vacating an arbitration award and remanding the
case for a new arbitration. Sanchez v. Elizondo, 878 F.3d 1216,
1219 (9th Cir. 2018); Bull HN Info. Sys., Inc. v. Hutson, 229 F.3d
321, 328 (1st Cir. 2000); Jays Foods, L.L.C. v. Chem. & Allied
Prod. Workers Union, Local 20, 208 F.3d 610, 612–13 (7th Cir.
2000); V.I. Hous. Auth. v. Coastal Gen. Constr. Servs. Corp., 27
F.3d 911, 914 (3d Cir. 1994); Landy Michaels Realty Corp. v.
Local 32B–32J, Serv. Emps. Int’l Union, 954 F.2d 794, 797 (2d
Cir. 1992); Forsythe International, S.A. v. Gibbs Oil Company of
Texas, 915 F.2d 1017 (5th Cir. 1990). However, the federal
appellate courts reached this conclusion based on the statutory
language of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16,
not on inherent powers or jurisdiction over specific writs.
Sanchez, 878 F.3d at 1219-20. The federal statute differs from
Florida’s statute in that it permits an appeal to be taken from an
order modifying, correcting, or vacating an arbitration award
under 9 U.S.C. § 16(a)(1)(E), whereas section 682.20(1)(f), Florida
Statutes, specifically allows “an appeal from an order vacating an
award without directing a rehearing.” While federal law is not
controlling, it is a persuasive example of how courts can better
protect the arbitration process with direct, rather than
protracted, appellate review.

                                 4
Inc. v. Jupiter Med. Ctr., Inc., 154 So. 3d 1115, 1135-36 (Fla.
2014). Requiring parties to undergo an additional evidentiary
procedure without appellate review would thus frustrate the
entire stated point of arbitration: limited litigation and finality.

     Accordingly, providing certiorari review in the limited
circumstances where a trial court has clearly departed from the
essential requirements of the arbitration statute not only protects
the contractual agreement reached between parties in a specific
case, but also supports the rationale behind the use of arbitration
as an alternative form of dispute resolution.

  DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF THE LAW

     To establish that a trial court has departed from the
essential requirements of the law, a party must show “the trial
court made an error so serious that it amounts to a miscarriage of
justice.” Fuller v. Truncale, 50 So. 3d 25, 27 (Fla. 1st DCA 2010)
(quoting State v. Smith, 951 So. 2d 954, 958 (Fla. 1st DCA 2007)).
“A ruling constitutes a departure from the essential requirements
of the law when it amounts to a violation of a clearly established
principle of law resulting in a miscarriage of justice. The term
clearly established law refers to recent controlling case law, rules
of court, statutes, and constitutional law.” Heart Surgery Ctr.,
128 So. 3d at 173 (citing Dep’t of Revenue ex rel. Carnley v. Lynch,
53 So. 3d 1154, 1156 (Fla. 1st DCA 2011)).

     In Florida, circuit courts are required to vacate an
arbitration award if:

    (a) The award was procured by corruption, fraud, or
    other undue means;

    (b) There was:

    1. Evident partiality by an arbitrator appointed as a
    neutral arbitrator;

    2. Corruption by an arbitrator; or

    3. Misconduct by an arbitrator prejudicing the rights of
    a party to the arbitration proceeding;

                                 5
     (c) An arbitrator refused to postpone the hearing upon
     showing of sufficient cause for postponement, refused to
     hear evidence material to the controversy, or otherwise
     conducted the hearing contrary to s. 682.06, so as to
     prejudice substantially the rights of a party to the
     arbitration proceeding;

     (d) An arbitrator exceeded the arbitrator’s powers;

     (e) There was no agreement to arbitrate, unless the
     person participated in the arbitration proceeding
     without raising the objection under s. 682.06(3) not later
     than the beginning of the arbitration hearing; or

     (f) The arbitration was conducted without proper notice
     of the initiation of an arbitration as required in s.
     682.032 so as to prejudice substantially the rights of a
     party to the arbitration proceeding.

§ 682.13(1)(a)-(f), Fla. Stat.

     In the absence of one of the above numerated factors, courts
are without authority to overturn an arbitration award. See
Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328
(Fla. 1989). Moreover, a trial court may not vacate an arbitration
award for mere errors of judgment an arbitrator has made as to
the law or as to the facts of a case. Visiting Nurse Ass’n of
Florida, Inc., 154 So. 3d at 1134.

    In the instant case, the trial court vacated the arbitration
award for two reasons: the arbitrator demonstrated evident
partiality and the arbitrator exceeded his powers.

                          Evident Partiality

     The correct test for weighing an arbitrator’s evident
partiality “consists of judging whether the complaining party
made a showing through credible evidence, giving rise to a
reasonable impression of partiality that was direct, definite, and
capable of demonstration, as distinct from a mere appearance of
bias that was remote, uncertain, and speculative.” Heart Surgery
Ctr., 128 So. 3d at 175 (quoting RDC Golf of Fla. I, Inc. v.

                                  6
Apostolicas, 925 So. 2d 1082, 1095 (Fla. 5th DCA 2006)). A trial
court’s failure to use the correct test in judging the partiality of
the arbitrator and the failure to correctly interpret case law
constitutes a departure from the essential requirements of law.
Heart Surgery Ctr., 128 So. 3d at 176.

     In this case, the trial court utilized, in part, an “outrageous
findings” standard that has been used in some federal cases.
United Indus. Workers, Serv., Transp., Prof’l Gov. of N. Am. of
Seafarers’ Intern. Union of N. Am., Atl., Gulf, Lakes & Inland
Waters Dist. AFL-CIO, (Local No. 16) on Behalf of Bouton v. Gov.
of Virgin Islands, 987 F.2d 162, 171 (3d Cir. 1993); Holodnak v.
Avco Corp., Avco-Lycoming Div., Stratford, Connecticut, 381 F.
Supp. 191, 199 (D. Conn. 1974), aff’d in part, rev’d in part, 514
F.2d 285 (2d Cir. 1975).

     The outrageous findings standard has not been adopted in
Florida as a distinct reason for vacating an award. In some cases
the language of an arbitration award may provide evidence of
partiality that could permit a court to vacate an arbitration
award. However, we decline to adopt that standard here as it
could impermissibly lead to trial courts reevaluating factual
findings and legal conclusions. See Visiting Nurse Ass’n of
Florida, Inc., 154 So. 3d at 1134. Such reevaluations occurred in
this case. The arbitrator’s challenged remarks related to the
demeanor and actions of the alleged victims, matters that were
clearly relevant to the lawfulness of the driver’s actions during
the incidents. 2 While the trial court disagreed with the

    2  The trial court objected to the arbitrator’s characterization
of the passenger in the first incident as “an embittered, angry old
woman who was mad at the world and spoiling for a verbal fight
before she even boarded the bus,” who was “childish and
obnoxious.” The trial court also found it outrageous that the
arbitrator described the passenger in the second incident as “an
already angry male passenger who got on the bus fussing at the
driver, and who was also looking for trouble.” While the
arbitrator’s remarks may be somewhat intemperate, the gist of
the remarks concerning the demeanor of the passengers was
arguably supported by inferences the arbitrator could have made
from the video recordings of the incidents provided to him.

                                 7
arbitrator’s characterization of the evidence, the remarks did not
demonstrate partiality toward a particular party.

     Accordingly, the trial court did not employ the correct legal
standard and thus departed from the essential requirements of
law.

     However, even if the circuit court had used the correct legal
standard, it still departed from the essential requirements of the
law by reweighing the facts of the case and concluding that the
arbitrator employed the incorrect legal standard. Neither of these
reasons constitute a valid basis for overturning an arbitration
award under section 682.13. Id.

                        Excess of Authority

     A trial court departs from the essential requirements of the
law when it erroneously concludes that an arbitrator has
exceeded his authority. Fegler, 65 So. 3d at 627. If an arbitration
award is within the scope of the parties’ collective bargaining
agreement, a trial court cannot vacate the award on the basis
that the arbitrator exceeded his authority. Id. It bears repeating
that a trial court may not vacate an arbitration award for mere
errors of judgment an arbitrator has made as to the law or as to
the facts of a case. Visiting Nurse Ass’n of Florida, Inc., 154 So.
3d at 1134.

     Here, the second reason the trial court vacated the
arbitration award was because it found the arbitrator exceeded
his authority by rendering an award that was beyond the scope of
the collective bargaining agreement. Specifically, the trial court
found that the arbitrator: (1) ignored the plain language of the
rules petitioner was alleged to have violated; (2) struck the words
“unlawful” and “improper” from one of the city’s disciplinary
rules, declined to apply Florida’s criminal law to petitioner’s
claim of self-defense, and failed to follow his own factual findings;
and (3) ignored the specific penalty provision contained in the
city’s disciplinary code by finding that although petitioner
committed violations of the code, those violations were not
serious enough to warrant dismissal.



                                 8
     The record does not support the trial court’s determinations.
The parties’ collective bargaining agreement states that Union
employees are subject to the City’s disciplinary code, and both
parties agree that the arbitrator was required to determine
whether the driver’s conduct violated that code. The driver was
alleged to have violated Rules 17 and 19, which pertain to the
offenses of “fighting, provoking or instigating a fight” and
“immoral, unlawful, or improper conduct or indecency, whether
on or off the job which would tend to affect the employee’s
relationship to his/her job, fellow workers’ reputations or goodwill
in the community.”

     The arbitrator correctly quoted both rules in the award,
found the driver acted in defense of herself and the other
passengers while operating the bus, and explicitly found that the
driver had not acted unlawfully or improperly. The arbitrator
ultimately concluded that the driver had not violated either rule,
and therefore the City had no justified basis to fire her.

     The arbitration award was clearly within the scope of the
arbitrator’s authority, and the trial court’s order constituted an
impermissible review of the arbitrator’s factual findings and
application of the law. Visiting Nurse Ass’n of Florida, Inc., 154
So. 3d at 1134. As such, the trial court’s order was a departure
from the essential requirements of law.

    The petition for writ of certiorari is granted and the order
under review is quashed.

BILBREY, J., concurs; KELSEY, J., concurs in part and dissents in
part with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

KELSEY, J., concurring in part and dissenting in part.



                                 9
     I concur in the majority’s resolution of the jurisdictional
issue and in the certification of conflict. I respectfully dissent
from the merits disposition, and would deny the petition. The
circuit court did not err in interpreting the City’s Code of Conduct
and the arbitration agreement; or in concluding that the
arbitrator demonstrated bias by, at a minimum, going beyond the
objectively-observable record facts and basing the decision on
speculation as to the non-record feelings, motivations, and
personalities of those involved in the underlying incidents. On
this record, the circuit court correctly vacated the award.

                 _____________________________


Eric Jacob Lindstrom of Egan, Lev, Lindstrom & Siwica, P.A.,
Orlando, for Petitioner.

Thomas M. Gonzalez and Melissa Torres of Thompson, Sizemore,
Gonzalez & Hearing, P.A., Tampa, for Respondent.




                                10
