Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT POUL HORNSLETH a/k/a POUL HORNSLETH, JR., and APRIL CALDWELL HORNSLETH, as trustees of THE POUL HORNSLETH a/k/a POUL HORNSLETH, JR. AND APRIL CALDWELL HORNSLETH REVOCABLE LIVING TRUST, Petitioners, v. JAVONTA M. McCLOUD, Respondent. No. 2D21-2074 April 20, 2022 Petition for Writ of Certiorari to the County Court for Pinellas County; Myra Scott McNary, Judge. Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg, for Petitioners. No appearance for Respondent. SMITH, Judge. In the instant case, Poul Hornsleth a/k/a Poul Hornsleth, Jr., and April Caldwell Hornsleth, as trustees of The Poul Hornsleth a/k/a Poul Hornsleth, Jr. and April Caldwell Hornsleth Revocable Living Trust (the Hornsleths) seek a writ of mandamus declaring the Center for Disease Control's (CDC) moratorium on residential evictions to be unconstitutional and ordering the trial court to lift the stay on their eviction proceeding and to enter a writ of possession in their favor and against their tenant, Javonta M. McCloud. Because this reaches beyond a clear legal right to the performance of a clear legal and ministerial duty, mandamus is not the proper vehicle for the Hornsleths, and this court considers the petition as one for certiorari relief. See Cruz v. Cooperativa De Seguros Multiples De Puerto Rico, Inc., 76 So. 3d 394, 395 (Fla. 2d DCA 2011) (reviewing nonfinal order denying motion to lift a stay by way of certiorari). Because the trial court did not depart from the essential requirements of the law in applying the law as it existed at the time of the order, we deny the petition. In order to be entitled to certiorari relief a party "must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 2 1995) (citing Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250 (Fla. 2d DCA 1967)). On September 4, 2020, the CDC issued an order imposing a nationwide temporary federal moratorium on residential evictions for nonpayment of rent. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 FR 55292-01, 2020 WL 5253768 (Sept. 4, 2020). The moratorium neither relieved tenants of the obligation to pay rent nor prevented eviction of tenants for reasons other than for nonpayment of rent. Id. In the instant case, the Hornsleths seek to evict Ms. McCloud based solely upon her failure to pay rent—which is exactly what the CDC moratorium prevented. Had the Hornsleths sought to evict Ms. McCloud based on the expiration of the lease's term, the eviction would not have been subject to the CDC moratorium and the trial court's order denying the motion to lift the stay would have been a departure from the essential requirements of the law. See id. But while the Hornsleths alleged in their motion to lift the stay that the term of the lease had expired, they never sought leave to amend their complaint to seek eviction on those grounds. Therefore, at the 3 time the order denying the motion to lift the stay was rendered, there was no departure from the essential requirements of the law. We note that since the order denying the motion to lift the stay, the United States Supreme Court issued an opinion that effectively ended the CDC's eviction moratorium as of August 26, 2021. See Ala. Ass'n of Realtors v. Dep't of Health & Human Servs., 141 S. Ct. 2485 (2021) ("If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.").1 However, because the CDC's eviction moratorium was in effect at the time the trial court denied the motion to lift the stay, where the Supreme Court had not yet directed that it be lifted, and because the complaint seeking eviction was never amended to include the expiration of the lease as an independent basis apart from the 1 It should be noted that while this petition has not stayed the underlying proceedings nor otherwise prevented the Hornsleths from again moving to lift the stay below, they have not done so— despite the fact that they are clearly aware of the Supreme Court's decision in Alabama Association of Realtors and its effect on the CDC's moratorium because they filed with this court a copy of the opinion as supplemental authority. See Gibraltar Private Bank & Tr. v. Schacht, 220 So. 3d 1234, 1235 (Fla. 3d DCA 2017) (holding that the filing of a petition for writ of certiorari does not divest the trial court of jurisdiction and, absent a stay, the filing of such a petition does not prevent the trial court from proceeding to adjudicate the case). 4 failure to pay rent, the trial court did not depart from the essential requirements of the law in denying the motion to lift the stay. See Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107, 1109 (Fla. 1st DCA 2019). Accordingly, the petition for writ of certiorari is denied. SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 5