When the lower tribunal errs as a matter of law in its determination that it has subject matter jurisdiction, the proper remedy is to invoke the original jurisdiction of the appellate court to assess the same, and perhaps restrain the trial judge from exceeding his or her authority. For example, it is well settled that certain claims arising out of Bankruptcy Court and Copyright litigation are “core” functions of the Federal Courts, which have exclusive jurisdiction over such actions, to the exclusion of state courts. It is appropriate to move to dismiss for lack of subject matter jurisdiction. Another example might be the trial court attempting to proceed in equity in a probate litigation, where the pleadings assert only legal causes of action, seeking only monetary damages. In the unequivocal absence of such subject matter jurisdiction, a trial court’s improper exercise of jurisdiction over the parties and the action constitutes irreparable harm to litigants when the trial court attempts to exercise power which it does not possess.
The appellate remedy is the timely filing of the Petition For Writ Of Prohibition in the appropriate appellate court. “Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Scott v. Hinkle, 259 So. 3d 982, 984 (Fla. 1st DCA 2018), citing Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla. 1992). Subject matter jurisdiction is the “[p]ower of a particular court to hear the type of case that is then before it” or “jurisdiction over the nature of the cause of action and relief sought.” Fla. Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (quoting Black’s Law Dictionary 767 (5th ed. 1979)). It “means no more than the power lawfully existing to hear and determine a cause.” Malone v. Meres, 91 Fla. 709, 109 So. 677, 684 (1926). Although a writ of prohibition is meant to be employed “with great caution and utilized only in emergencies,” English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977), it “may be granted when a trial court acts outside of its jurisdiction. For example, prohibition is appropriate when another court or administrative body has jurisdiction over the subject matter.” Scott v. Francati, 214 So. 3d 742, 749 (Fla. 1st DCA 2017), review denied sub nom. Francati v. Scott, No. SC17-730, 2017 WL 2991836 (Fla. July 14, 2017). See also Roberts v. Brown, 43 So. 3d 673 (Fla. 2010) (granting prohibition in a matter in which the Florida Supreme Court possessed exclusive jurisdiction); Dep’t of Agric. & Consumer Servs. v. Bonanno, 568 So. 2d 24, 29 (Fla. 1990) (granting prohibition to keep the circuit court from exercising jurisdiction over citrus canker cases within the exclusive jurisdiction of the Department of Agriculture and Consumer Services).
The defense of lack of subject matter jurisdiction cannot be waived, nor can jurisdiction of the trial court be conferred by waiver, agreement or acquiescence. Indeed, lack of subject matter jurisdiction may be asserted for the first time on appeal. And, the Petition For Writ of Prohibition must be filed before the trial court acts, as it cannot be used to undo or unwind court orders, improvidently granted. A Petition seeking prohibition is the proper vehicle and should issue in the circumstance, where there are no disputed issues of fact and the trial court is poised to proceed without subject matter jurisdiction. Am. Mar. Officers Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008). Prohibition lies to prevent a tribunal from acting without jurisdiction or in excess of its jurisdiction. So, we recommend that you always analyze subject matter jurisdiction, and when appropriate, write the Petition for Writ Of Prohibition to right the ship.
We at Shendell & Pollock have handled numerous trial court and appellate court cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at gary@shendellpollock.com .
