Monroe County, etc. v. Kearns Construction Company

Third District Court of Appeal
State of Florida
Opinion filed December 31, 2025.
Not final until disposition of timely filed motion for rehearing.
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No. 3D25-1586
Lower Tribunal No. 24-CA-1134-M
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Monroe County, etc.,
Petitioner,
vs.
Kearns Construction Company,
Respondent.
A Writ of Certiorari to the Circuit Court for Monroe County, Timothy J.
Koenig, Judge.
Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes
and John J. Quick, for petitioner.
Robinson Law, P.A., and Raymond L. Robinson and Marisa C. Amer,
for respondent.
Before EMAS, LOBREE and BOKOR, JJ.
BOKOR, J.

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Monroe County petitions for second-tier certiorari review of the circuit
court appellate division’s order quashing the Monroe County Board of
County Commissioners’ bid award and denial of Kearns Construction
Company’s bid protest. Neither challenged act resulted from a quasi-judicial
proceeding of the Board. For the reasons explained below, we grant the
instant petition and quash the order of the circuit court appellate division.
I. Background
On August 3, 2024, Monroe County published Request for Proposal
No. 568 seeking bidders to deploy construction material for an artificial reef
site off the Florida coast. The request specified that each proposal include a
certified check or bond as security, and it also reserved the right to waive
informalities, errors, and irregularities in the proposal as necessary to
“negotiate a contract as may be deemed best for the interests of the County.”
A selection committee was appointed to evaluate the proposals and
formulate a recommendation for the Board. The committee ranked the
proposals and eventually recommended accepting a bid from Biscayne
Towing & Salvage. Kearns, the second-ranked bidder, protested. Kearns
argued that the recommended bid was non-conforming because it failed to
include the name or signature of the surety on the attached bond.
On October 16, 2024, the Board held a public meeting. During that

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meeting, a representative of Kearns explained why the contract should not
be awarded as recommended. An attorney for the County responded,
opining that the recommended bid’s defect had been cured by submitting a
cashier’s check and that the Board had discretion to award the contract as
recommended under relevant law and the terms of the Request for Proposal.
The Board voted to award the contract as recommended. The Board heard
from no sworn witnesses, took no evidence, and made no factual findings or
legal conclusions.
On November 8, 2024, Kearns petitioned for certiorari in the circuit
court appellate division, naming the County as respondent. The County
moved to dismiss for lack of jurisdiction, but the court denied the motion,
citing Biscayne Marine Partners LLC v. City of Miami, 273 So. 3d 97, 100
(Fla. 3d DCA 2019), for the proposition that the Board’s “adverse ruling on a
bid protest may be challenged by filing a petition for writ of certiorari.”
On June 27, 2025, the court granted the petition for certiorari, ruling
that the Board departed from the essential requirements of law after a quasi-
judicial hearing. On July 14, 2025, the County moved for rehearing and
clarification; the court denied rehearing and clarified only that its writ had
quashed both the County’s rejection of Kearns’ bid protest and the award to
Biscayne Towing & Salvage. The County now petitions this court for second-

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tier certiorari review of the circuit court appellate division’s order.
II. Analysis
Review on second-tier certiorari inquires only whether “the lower
tribunal has violated a clearly established principle of law resulting in a
miscarriage of justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010). A court has no power to act without jurisdiction. See
State ex rel. West’s Drug Stores v. Cornelius, 149 So. 332, 332 (Fla. 1933).
And while the appellate division of a circuit court has jurisdiction to review
acts of a local agency, board, or commission, see Teston v. City of Tampa,
143 So. 2d 473, 476 (Fla. 1962), “only quasi-judicial actions are reviewable
via certiorari.” Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla.
2001).
So if the action reviewed by certiorari below was not quasi-judicial, then
the circuit court violated a clearly established principle of law by reviewing
the decision via certiorari in its appellate capacity. And reviewing an
executive decision of a governmental agency the same way a court would
review a quasi-judicial decision would result in a miscarriage of justice. This
is so because it would allow the judiciary to review a clearly executive
function under the guise of error correcting a quasi-judicial decision in
violation of separation of powers principles and public policy. As the Florida

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Supreme Court explained:
In Florida . . . a public body has wide discretion in soliciting and
accepting bids for public improvements and its decision, when
based on an honest exercise of this discretion, will not be
overturned by a court even if it may appear erroneous and even
if reasonable persons may disagree.
Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So. 2d 505, 507
(Fla. 1982); see also Dep’t of Transp. v. Groves-Watkins Constructors, 530
So. 2d 912, 913 (Fla. 1988) (applying Liberty County and noting Florida's
policy of deferring to governmental decisions in competitive bidding
situations absent a “finding of illegality, fraud, oppression, or misconduct”).
This court has held that an unsuccessful competitive bidder for a
county contract cannot seek certiorari review of such a decision because
“such an award is the exercise of an executive function, rather than a quasi-
judicial act subject to certiorari review by the Appellate Division” of the circuit
court. MRO Software, Inc. v. Miami-Dade County, 895 So. 2d 1086, 1086
(Fla. 3d DCA 2004); see also Charles M. Schayer & Co. v. Bd. of Cnty.
Comm’rs of Dade Cnty., 188 So. 2d 871, 871 (Fla. 3d DCA 1966) (holding
that certiorari did not lie where Dade County Board of Commissioners failed
to award lease to highest bidder because the choice “was not judicial or
quasi-judicial”). But we must look to the procedure employed here to
determine whether the underlying act was judicial or quasi-judicial.

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The Florida Supreme Court’s opinion in De Groot v. Sheffield outlines
what distinguishes a quasi-judicial function: “[W]hen notice and a hearing are
required and the judgment of the board is contingent on the showing made
at the hearing, then its judgment becomes judicial or quasi-judicial.” 95 So.
2d 912, 915 (Fla. 1957). Here, nothing suggested that the Board’s vote
hinged on any evidentiary showing by the successful bidder or by Kearns in
protest of the recommended award. In examining the characteristics of a
properly noticed public hearing, as opposed to a quasi-judicial hearing, our
sister court noted the lack of sworn testimony and cross-examination of
adverse witnesses:
While there was a public hearing upon notice, a quasi-judicial
type of hearing was neither contemplated nor conducted. About
all that happened was that appellees’ representative made some
unsworn statements in support of the application and the county
attorney responded with opinions of his own. . . . Therefore, a
review by certiorari was an inappropriate remedy.
Bd. of Cnty. Comm’rs of Hillsborough Cnty. v. Casa Dev. Ltd., II, 332 So. 2d
651, 654 (Fla. 2d DCA 1976). And that’s the same situation before us. A
public meeting occurred, a representative of a party made unsworn
statements in support of the party’s position, and a county attorney
responded with opinions of his own. The Board then made the ultimate
decision, through a process that neither required the development of a
factual record nor contemplated cross-examination.

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Kearns, and the circuit court’s order on review, relied on Biscayne
Marine Partners v. City of Miami, 273 So. 3d 97 (Fla. 3d DCA 2019), for the
proposition that the Board’s vote constituted a quasi-judicial act. Though
Biscayne Marine involved a challenge to a portion of a procurement process,
the facts differ. There, the City of Miami Code created a different
procurement and bid protest procedure from the one here. See id. at 100
(explaining that “a City-appointed hearing officer heard Biscayne Marine's
bid protest and . . . entered an order denying the bid protest and affirming
the recommendation of the City Manager to award the bid” to the
recommended bidder); see also § 18-104, City of Miami Code (establishing
bid protest procedure). The city code established a quasi-judicial bid protest
process before a hearing examiner and a right to appeal under the Florida
Rules of Appellate Procedure. § 18-104(b), City of Miami Code. And that’s
what the petitioner in Biscayne Marine challenged—the quasi-judicial
process before the hearing examiner and the resulting order. See Biscayne
Marine, 273 So. 3d at 100 (“Biscayne Marine challenged the Hearing
Officer’s order by timely filing a petition for a writ of certiorari with the Miami-
Dade County Circuit Court’s Appellate Division.”). Biscayne Marine was not
a challenge to the award by the city commission.
The Monroe County Code contains no similar hearing examiner

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process to examine a bid protest. See §§ 2-346–2-347, Monroe County
Code. Here, there was no quasi-judicial determination by a hearing
examiner. Instead, Kearns challenges the award by the Board. And that is
an executive function, even though the protesting bidder was allowed to
make its case in the context of a presentation at a public hearing. See MRO
Software, 895 So. 2d at 1086 (denying relief because “such an award is the
exercise of an executive function” and explaining that under the Miami-Dade
County Code the public hearing and orderly presentation by the
recommended bidder and opposing parties, including a protesting bidder,
does not transform the function into a “quasi-judicial act subject to certiorari
review”); Casa Dev. Ltd., II, 332 So. 2d at 654.
We do not comment on the merits of a proper and timely legal
challenge to the award through the filing of legal or declaratory relief in a trial
court of competent jurisdiction. See, e.g., Cent. Fla. Equip. Rentals of Dade
Cnty., Inc. v. Lowell Dunn Co., 586 So. 2d 1171, 1172 (Fla. 3d DCA 1991)
(“LDC sued Central and Dade County to enjoin Central from proceeding with
the project . . . .”); Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm’rs,
955 So. 2d 647, 650 (Fla. 1st DCA 2007) (“[A]ppellant filed a six-count
complaint challenging the County’s award . . . .”). But a circuit court sitting in
its appellate capacity is not the place. The circuit court, having granted

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certiorari review of an act that was not quasi-judicial, violated clearly
established jurisdictional principles. This is so because a court’s proper
exercise of jurisdiction is a principle “so rudimentary to our system of
jurisprudence as to be beyond debate.” Hardman v. Koslowski, 135 So. 3d
434, 436 (Fla. 1st DCA 2014); see also Llanso v. Gomez de Cordova, 263
So. 3d 137, 140 (Fla. 3d DCA 2018) (“[A]n order entered without jurisdiction
is a nullity, and cannot be considered harmless error.” (quotation omitted)).
III. Conclusion
The circuit court appellate division lacked jurisdiction to consider this
matter through certiorari review. For the reasons explained, we therefore
grant the petition and quash the order.
Petition granted; order quashed.