Florida Supreme Court: No Certiorari Review of Anti‑SLAPP Denials; Interlocutory Appeals Authorized via Amended Rule 9.130

Florida Supreme Court: No Certiorari Review of Anti‑SLAPP Denials; Interlocutory Appeals Authorized via Amended Rule 9.130

Case: Kevin Vericker v. Norman Christopher Powell

Court: Supreme Court of Florida

Date: March 27, 2025

Opinion by: Grosshans, J. (with Muñiz, C.J., Labarga, Couriel, Francis, and Sasso, JJ., concurring)

Dissent: Canady, J.

Procedural Posture: Certified conflict review of Third District’s denial of certiorari; conflict with Second District decisions.

Introduction

This decision resolves a longstanding conflict among Florida’s district courts about how—and when—appellate courts may review a trial court’s denial of a motion brought under Florida’s Anti‑SLAPP statute, section 768.295, Florida Statutes. The case arises from a defamation suit filed by a municipal attorney, Norman Powell, against blogger Kevin Vericker, who invoked the Anti‑SLAPP statute to seek early dismissal or summary judgment on the ground that the lawsuit was a meritless attempt to punish protected speech on a public issue.

The key issue was jurisdictional and procedural: Does a district court of appeal have certiorari jurisdiction to immediately review a nonfinal order denying an Anti‑SLAPP motion? The Third District said no and certified conflict with Second District decisions that said yes. The Florida Supreme Court approved the Third District’s view and disapproved conflicting Second District cases. At the same time, to effectuate the Legislature’s command that Anti‑SLAPP matters be resolved “at the earliest possible time,” the Court amended Florida Rule of Appellate Procedure 9.130 to expressly authorize interlocutory appeals from nonfinal orders denying qualifying Anti‑SLAPP motions.

Summary of the Opinion

The Court holds that:

  • Denials of Anti‑SLAPP motions do not cause the kind of irreparable harm necessary to support certiorari review; thus, such orders are not reviewable by certiorari.
  • Florida’s Anti‑SLAPP statute does not confer “immunity from suit” or a comparable absolute right that would justify certiorari jurisdiction.
  • To give procedural effect to the Legislature’s intent for expedited resolution, the Court has (in a separate rulemaking opinion) amended Florida Rule of Appellate Procedure 9.130(a)(3) to create a new category of appealable nonfinal orders: denials of qualifying motions filed under sections 768.295(4) (general Anti‑SLAPP), 718.1224(5) (Condominium Act Anti‑SLAPP), and 720.304(4)(c) (Homeowners’ Association Anti‑SLAPP).
  • The Court approves the Third District’s decision in Vericker v. Powell and disapproves Second District decisions in Gundel, Baird, and Davis to the extent inconsistent.

Justice Canady dissents. While agreeing with the rule change allowing interlocutory appeals going forward, he would permit certiorari review in this case, reasoning that the chilling effect on protected speech constitutes irreparable harm sufficient to establish certiorari jurisdiction where no other interlocutory avenue exists.

Analysis

Factual and Procedural Background

Vericker ran a blog focused on North Bay Village, Florida. After the Village appointed Powell as its attorney, Vericker posted criticisms questioning Powell’s credentials, character, and competence. Powell sued for defamation (per se). Following discovery, Vericker filed a combined “motion for summary judgment” and “Anti‑SLAPP motion” under section 768.295(4), arguing that: (1) Powell was a public official who must prove “actual malice” under First Amendment defamation law; (2) the record precluded a finding of actual malice; and (3) the lawsuit was thus both meritless and retaliatory, in violation of the Anti‑SLAPP statute. The trial court denied the motion, and the Third District denied Vericker’s petition for a writ of certiorari from that nonfinal order. The Third District certified conflict with Second District precedent that had permitted certiorari review, and the Florida Supreme Court accepted the case.

Precedents and Authorities Cited

  • Final Judgment Rule: Article V, section 4(b)(1), Florida Constitution; Citizens Property Insurance Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344 (Fla. 2012); federal analog in Richardson‑Merrell, Inc. v. Koller, 472 U.S. 424 (1985). These authorities underscore the baseline rule: appellate review generally awaits final judgment.
  • Certiorari Standards: University of Florida Board of Trustees v. Carmody, 372 So. 3d 246 (Fla. 2023); Nader v. Florida Department of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012); Rodriguez v. Miami‑Dade County, 117 So. 3d 400 (Fla. 2013). Together, these decisions establish the narrow scope of certiorari: a petitioner must show a departure from the essential requirements of law and irreparable harm not correctable on plenary appeal. Irreparable harm is a threshold jurisdictional requirement.
  • Textual Approach to Statutory Immunity: Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353 (Fla. 2023); Tsuji v. Fleet, 366 So. 3d 1020 (Fla. 2023). The Court compares the Anti‑SLAPP statute’s text with statutes that expressly grant immunity, emphasizing the absence of “immunity” language or structural analogs.
  • District Court Conflict:
    • Gundel v. AV Homes, Inc., 264 So. 3d 304 (Fla. 2d DCA 2019); Baird v. Mason Classical Academy, Inc., 317 So. 3d 264 (Fla. 2d DCA 2021); Davis v. Mishiyev, 339 So. 3d 449 (Fla. 2d DCA 2022) — viewing Anti‑SLAPP as creating a substantive right akin to an immunity, supporting certiorari review.
    • WPB Residents for Integrity in Government, Inc. v. Materio, 284 So. 3d 555 (Fla. 4th DCA 2019) — rejecting certiorari but urging a rule amendment to permit interlocutory appeals in the public interest.
    • Vericker v. Powell, 343 So. 3d 1278 (Fla. 3d DCA 2022) — adopts Materio; denies certiorari and certifies conflict.
  • Other Authorities: Tampa Port Auth. v. Henriquez, 377 So. 3d 187 (Fla. 2d DCA 2023) (nonfinal character of denials of motions to dismiss); Forrey v. Marlin Construction Group, LLC, 49 Fla. L. Weekly D1119 (Fla. 6th DCA May 24, 2024) (nonfinal character of denials of summary judgment). Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310 (S.D. Fla. 2020) (describing § 768.295 as fee‑shifting; the Florida Supreme Court rejects the notion it is “merely” fee‑shifting).

Legal Reasoning

The Court begins with the baseline: nonfinal orders are generally not reviewable until final judgment. Immediate review of nonfinal orders is possible only if authorized by rule (primarily Rule 9.130) or through an extraordinary writ such as certiorari. Certiorari is narrow and requires a showing of irreparable harm not remediable on direct appeal, before the court reaches whether there was a departure from the essential requirements of law.

Against this backdrop, Vericker argued that the Anti‑SLAPP statute confers a de facto immunity from suit and that the harm of being forced to litigate, particularly in a speech‑targeted case, is irreparable. The Court rejects this view based on text and structure:

  • No textual grant of immunity: Section 768.295 does not say “immunity” (unlike numerous Florida statutes that do, such as §§ 397.6775, 560.116, 631.918, 684.0045, 765.109(1), 768.095, 768.128(2)). The Court treats this omission as meaningful.
  • No structural hallmarks of immunity: The statute does not bar naming a defendant, impose a stay, or otherwise erect absolute barriers to litigation (contrast § 768.28(9)(a) and similar provisions that prohibit naming certain defendants or create categorical protections).
  • Statute contemplates some litigation: Section 768.295(4) prescribes procedures involving motions (dismissal or summary judgment), affidavits, and a prompt hearing “at the earliest possible time.” The structure anticipates that the court may need a factual record to determine whether a lawsuit is “without merit” and brought “primarily because” of protected speech. That is unlike classic immunity doctrines designed to prevent litigation burdens altogether.

Because the statute does not create a true immunity from suit, the burdens of continued litigation following a denial of an Anti‑SLAPP motion are not the kind of irreparable harm certiorari is intended to remedy. The Court reiterates a core principle: “having to defend against a lawsuit, even if meritless” ordinarily does not qualify as irreparable harm (Rodriguez; Carmody).

Still, the Court emphasizes that the Legislature’s policy choices must be given their due procedural effect. Section 768.295(1) declares the public policy to deter SLAPP suits and mandates their “expeditious” disposition. Section 768.295(4) directs courts to hold a hearing “at the earliest possible time” and, among other remedies, awards prevailing‑party attorney’s fees (and actual damages against governmental violators). To implement that policy and timing requirement, the Court exercises its constitutional authority over practice and procedure to amend Rule 9.130(a)(3) and authorize interlocutory appeals from nonfinal orders that deny qualifying Anti‑SLAPP motions filed under sections 768.295(4), 718.1224(5), and 720.304(4)(c).

The Court thus adopts the Fourth and Third Districts’ approach: do not expand certiorari; change the appellate rules instead. It also notes that the fee‑shifting feature should discourage abuse or floodgates of interlocutory appeals.

A caveat appears in a footnote: the petitioner did not claim that the trial court failed to follow the statute’s procedural, nondiscretionary requirements. The Court’s citation to Carmody signals that in rare circumstances, certiorari may remain available to correct a trial court’s refusal to perform a clear, nondiscretionary statutory duty—distinct from merits‑based disagreements about the Anti‑SLAPP criteria.

The Dissent

Justice Canady agrees that the rules should be amended to provide an interlocutory appeal path but would not foreclose certiorari in this case while that avenue did not yet exist. In his view, the chilling effect on protected speech from continuing litigation is itself an irreparable harm that justifies certiorari jurisdiction where no alternative interlocutory mechanism was available. He would remand to the district court to consider the merits of the certiorari petition, taking no position on the ultimate entitlement to relief.

Impact and Practical Implications

This decision reshapes the procedural landscape for Anti‑SLAPP litigation in Florida state courts:

  • No certiorari route for denials of Anti‑SLAPP motions: Parties cannot use certiorari to obtain immediate review of nonfinal orders denying Anti‑SLAPP relief based solely on litigation burdens or the asserted chilling effect. The irreparable‑harm threshold is not met.
  • New interlocutory appeal rights under Rule 9.130: Denials of qualifying Anti‑SLAPP motions are now directly appealable as nonfinal orders. This includes:
    • Section 768.295(4): General Anti‑SLAPP statute;
    • Section 718.1224(5): Condominium Act Anti‑SLAPP;
    • Section 720.304(4)(c): Homeowners’ Association Anti‑SLAPP.
    Practitioners should consult the separate rule amendment opinion (In re Amendments to Fla. R. App. P. 9.130, No. SC2024‑1798) for the precise text and effective date.
  • Standards on interlocutory review: On an interlocutory appeal, the reviewing court applies the traditional standards of review for the underlying ruling (e.g., de novo for a pure legal issue on a motion to dismiss or summary judgment; fact‑based determinations assessed for competent, substantial evidence where appropriate). This is a more robust review than the narrow, error‑correcting scope of certiorari.
  • Legislative intent operationalized: By authorizing interlocutory review, the Court has aligned procedural rules with the Legislature’s command for “earliest possible” resolution of Anti‑SLAPP issues, mitigating the chilling effect while preserving the final‑judgment rule’s core purposes.
  • Uniformity restored: The Court resolves the district conflict by approving the Third District and disapproving contrary Second District precedent (Gundel, Baird, Davis). Appellate treatment of Anti‑SLAPP denials should now be uniform statewide.
  • Potential deterrent to meritless suits and appeals: The prevailing‑party fee provision applies at the Anti‑SLAPP stage. This can deter both meritless SLAPP suits and strategic but weak interlocutory appeals.
  • Scope limits remain: The new rule authorizes appeals from denials of Anti‑SLAPP motions. Orders granting Anti‑SLAPP relief typically terminate the case as to the claim(s) affected and are reviewable as final orders; they do not require a special nonfinal appeal pathway.
  • Narrow possibility of certiorari for procedural noncompliance: Although not decided here, the Court’s reference to Carmody suggests that certiorari might remain available in rare cases where a trial court refuses to perform a nondiscretionary, procedural duty imposed by the statute (e.g., refusing to set the mandated hearing). But mere denial on the merits does not suffice.

Complex Concepts Simplified

  • Anti‑SLAPP: “SLAPP” stands for Strategic Lawsuit Against Public Participation. Anti‑SLAPP laws deter lawsuits filed primarily to silence or punish people for exercising free‑speech rights on public issues. Florida’s statute allows a defendant to seek prompt dismissal or summary judgment and authorizes prevailing‑party attorney’s fees (and actual damages against government violators).
  • Nonfinal (Interlocutory) Orders: Orders issued before the case is finished. As a rule, they are not immediately appealable unless a specific appellate rule allows it.
  • Certiorari: An extraordinary writ used to correct certain serious, nonfinal errors when the harm cannot be fixed later on appeal. It requires (1) a departure from the essential requirements of law and (2) irreparable harm that cannot be remedied by standard appeal after final judgment. It is not a general substitute for an appeal.
  • Florida Rule of Appellate Procedure 9.130: The rule that lists specific categories of nonfinal orders that can be appealed immediately. The Court’s amendment adds denials of qualifying Anti‑SLAPP motions to this list.
  • Immunity from Suit vs. Expedited Procedure: “Immunity from suit” blocks litigation itself and often supports immediate review if denied. Florida’s Anti‑SLAPP statute does not grant such immunity; instead, it creates a faster process with fee‑shifting to deter meritless speech‑targeted claims.
  • Public Official / Actual Malice (Defamation): When the plaintiff is a public official, the First Amendment requires proof that the defendant made a defamatory statement with “actual malice” — knowledge of falsity or reckless disregard for truth. This background principle was part of Vericker’s Anti‑SLAPP theory but not the focus of the Supreme Court’s procedural ruling.

Conclusion

The Florida Supreme Court charts a clear and measured path for early review of Anti‑SLAPP denials. It declines to stretch certiorari beyond its narrow bounds—reaffirming that litigation burdens alone rarely constitute irreparable harm—and instead wields its procedural rulemaking authority to create an express interlocutory appeal right under Rule 9.130 for denials of qualifying Anti‑SLAPP motions. This dual holding both safeguards the integrity of Florida’s final‑judgment rule and faithfully implements the Legislature’s policy to protect speech by ensuring expedited resolutions of SLAPP claims “at the earliest possible time.”

By approving the Third District and disapproving conflicting Second District decisions, the Court resolves a substantive split and provides uniform guidance: defendants who lose Anti‑SLAPP motions can now obtain immediate appellate review—but must pursue it through the amended nonfinal appeal rule, not through certiorari. The dissent underscores the continuing concern over chilling effects, but the majority’s approach offers a durable, rule‑based solution that balances efficient judicial administration with robust protection for speech on public issues.

Case Details

Year: 2025
Court: Supreme Court of Florida

Comments