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Burnett v. Target Corp.

Florida Court of Appeals, Third District

March 28, 2018

Shane Burnett, Petitioner,
v.
Target Corporation, Respondent.

          Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lower Tribunal Nos. 15-15320 & 17-165 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 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").

         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, ...


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