Christine Askew, etc. v. Florida Department of Children and Families

Supreme Court of Florida
____________

No. SC2023-1072
____________

CHRISTINE ASKEW, etc.,
Petitioner,

vs.

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
Respondent.

May 16, 2024

GROSSHANS, J.

In this case, Christine Askew seeks review of the First District

Court of Appeal’s decision in Florida Department of Children &

Families v. Askew, 365 So. 3d 1211 (Fla. 1st DCA 2023). Askew

argues that we have jurisdiction because the decision below

misapplied a decision from the Third District Court of Appeal. We

deny review, finding that “misapplication jurisdiction” is beyond the

scope of our conflict jurisdiction under article V, section 3(b)(3) of

the Florida Constitution.
I

Kevin Askew resigned from his job with the Florida

Department of Children and Families (DCF) after his supervisor

determined that he had accessed files for personal use. Mr. Askew

later sued DCF under the Florida Civil Rights Act, see ch. 760, Fla.

Stat., alleging unlawful constructive termination based on disability

and gender. A jury sided with Mr. Askew, and the trial court

entered judgment consistent with the jury’s verdict. The First

District, however, reversed, holding that the trial court erred in

denying DCF’s motion for directed verdict. Askew, 365 So. 3d at

1215.

Christine Askew1 now challenges the First District’s holding,

arguing that we have jurisdiction under article V, section 3(b)(3).

She cites a Third District decision, City of Miami v. Kory, 394 So. 2d

494 (Fla. 3d DCA 1981), to support her petition for conflict review.

Askew does not argue that the First District’s decision states any

legal principles inconsistent with Kory or that it reaches a different

1. Mr. Askew passed away after the First District held oral
argument. The First District granted a motion to substitute
Christine Askew, the personal representative of his estate, as
Appellee.

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outcome based on the same legal principle and similar facts.

Instead, Askew claims that the First District misapplied Kory and

cites to our decisions in Gibson v. Avis Rent-A-Car System, Inc., 386

So. 2d 520, 521 (Fla. 1980), and Advanced Chiropractic &

Rehabilitation Center Corp. v. United Automobile Insurance Co., 140

So. 3d 529, 534 (Fla. 2014), as support for granting review based

upon a misapplication theory of conflict jurisdiction.2

II

The Florida Constitution gives us discretionary authority to

“review any decision of a district court of appeal . . . that expressly

and directly conflicts with a decision of another district court of

2. In addition to Gibson and Advanced Chiropractic, this Court
has accepted numerous cases based on a misapplication theory of
conflict jurisdiction. See, e.g., Rippy v. Shepard, 80 So. 3d 305, 306
(Fla. 2012); DelMonico v. Traynor, 116 So. 3d 1205, 1208 (Fla.
2013); Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1087 (Fla.
2013). Even still, the misapplication doctrine has remained
controversial. See Knowles v. State, 848 So. 2d 1055, 1059 (Fla.
2003) (Wells, J., dissenting); Aguilera v. Inservices, Inc., 905 So. 2d
84, 99 (Fla. 2005) (Wells, J., dissenting); id. at 106 (Bell, J.,
dissenting); DelMonico, 116 So. 3d at 1222 (Canady, J., dissenting)
(failure to “extend and apply” our case law is not a basis for conflict
review); Cortez, 123 So. 3d at 1098 (Canady, J., dissenting) (“[T]he
fact that a majority of this Court disagrees with how a lower court
has” applied a precedent “does not establish express and direct
conflict.”).

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appeal or of the supreme court on the same question of law.” Art.

V, § 3(b)(3), Fla. Const. (emphasis added). In our view, section

3(b)(3) makes it clear that we do not have jurisdiction to review a

case without first finding that it directly and expressly conflicts with

another decision. See Sheffield v. R.J. Reynolds Tobacco Co., 329

So. 3d 114, 119 (Fla. 2021) (stating commitment to supremacy-of-

text principle).

“ ‘Express and direct conflict’ is a strict standard that requires

either the announcement of a conflicting rule of law or the

application of a rule of law in a manner that results in a conflicting

outcome despite ‘substantially the same controlling

facts.’ ” Kartsonis v. State, 319 So. 3d 622, 623 (Fla. 2021) (quoting

Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960)).

“Because the facts in the second situation ‘are of the upmost

importance,’ there can be no conflict on this basis when the cases

are easily distinguishable.” Id. (quoting Mancini v. State, 312 So. 2d

732, 733 (Fla. 1975)). We have long stressed that there must be a

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“real, live and vital conflict” before our jurisdiction may be invoked.

Nielsen v. City of Sarasota, 117 So. 2d 731, 735 (Fla. 1960).3

Nevertheless, on occasion, we have also granted review on

“misapplication” grounds, which we said occurs “when a court

relies on a decision that involves a situation materially at variance

with the one under review.” Advanced Chiropractic, 140 So. 3d at

534. We have granted such review even when the decision engaging

in “misapplication” addressed a different question of law or had

substantially different facts from the decision it was alleged to have

misapplied. See id. at 537 (Polston, J., dissenting) (“The required

conflict does not exist here because the Fourth District’s decision in

Advanced Chiropractic addresses a question of law that is entirely

different from the questions of law we addressed in [the alleged

conflict cases].”). In other words, we have said that a district

court’s decision to rely on an inapplicable case or apply precedent

3. The Nielsen court noted the importance of constitutional
limitations on conflict jurisdiction in order to “sanctify the decisions
of the Courts of Appeal with an aspect of finality, so essential to
prevent any imbalance in the several echelons of the appellate
process.” 117 So. 2d at 734.

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to different facts provides a sufficient basis for review, especially if

we find error in the lower court’s analysis. 4

However, this theory of jurisdiction is incompatible with the

constitutionally mandated requirement of direct and express

conflict. See art. V, § 3(b)(3), Fla. Const. Misplaced reliance on a

prior decision does not mean that the two decisions will always

“directly” conflict or reach different holdings based on “the same

question of law.” See id. Indeed, Justice Wells questioned the

“constitutional underpinning” of misapplication jurisdiction some

years ago, stressing that one cannot “find th[e] concept or those

4. For example, in DelMonico, the Fourth District Court of
Appeal applied the principle of litigation immunity as recognized in
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v.
United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994). See
DelMonico, 116 So. 3d 1205. As acknowledged by this Court,
DelMonico contained substantially different facts than Levin, but we
accepted review because we found error in the lower court’s
application of our precedent as applied to a different question of
law. Id. at 1208 (holding that the immunity doctrine at issue “was
never intended to sweep so broadly” as the lower court’s extension
of it). Justice Canady, however, raised jurisdictional concerns,
noting that “[a] decision cannot expressly and directly conflict with
another decision on a particular issue unless both decisions
contain a holding on that issue.” Id. at 1221 (Canady, J.,
dissenting).

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words” anywhere in the text of article V. See Knowles, 848 So. 2d

at 1059 (Wells, J., dissenting).

Our more recent decision in Kartsonis reinforces Justice

Wells’s textual point. In that case, we reiterated that the

appropriate conflict standard focuses on “the announcement of a

conflicting rule of law or the application of a rule of law in a manner

that results in a conflicting outcome despite ‘substantially the same

controlling facts.’ ” Kartsonis, 319 So. 3d at 623 (quoting Nielsen,

117 So. 2d at 734); accord Aravena v. Miami-Dade Cnty., 928 So. 2d

1163, 1166 (Fla. 2006) (express-and-direct conflict exists where two

holdings are irreconcilable). Noticeably absent from Kartsonis was

any mention of misapplication—or anything comparable. And as

this case illustrates, misapplication of a decision could be alleged

even when two decisions involve substantially different facts and

state no contradictory legal principles.

Based on this analysis, we acknowledge the flaws in our

misapplication jurisprudence and recognize that we overstepped

our constitutional authority by applying this theory of conflict

jurisdiction. Accordingly, we now affirm what Kartsonis implies:

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misapplication alone is not sufficient to trigger conflict jurisdiction

under article V, section 3(b)(3) of our constitution.

III

For the above reasons, we deny Askew’s petition for review.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, FRANCIS, and SASSO, JJ.,
concur.
LABARGA, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., concurring in result.

I ultimately agree with the majority’s conclusion that our

conflict jurisdiction under article V, section 3(b)(3) is not triggered

by “misapplication alone.” Majority op. at 8. Thus, I concur in the

result.

Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions

First District - Case No. 1D2021-2499

(Leon County)

Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox, P.A.,
Tallahassee, Florida,

for Petitioner

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Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Daniel W. Bell, Chief Deputy Solicitor General, and David
M. Costello, Deputy Solicitor General, Office of the Attorney
General, Tallahassee, Florida,

for Respondent

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