author: EMAS, J.

text:
    AGRITRADE, LP, et al., Appellants, v. Antonio QUERCIA, et al., Appellees.
    Nos. 3D15-2392 3D16-1181
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017
    White & Case, Raoul G. Cantero, James N. Robinson, David P. Draigh and Jesse L. Green ; Perlman, Bajandas, Yevoli & Albright, Paul D. Turner, Jonathan Feldman, Joshua B. Spector and D. Porpoise Evans ; Kula & Associates, Elliot B. Kula and W. Aaron Daniel, for appellants.
    Ross & Girten and Lauri Waldman Ross ; Kozyak Tropin & Throckmorton, Dyanne E. Feinberg, Gail A. McQuilkin, and Javier Lopez, for appellees.
    Before ROTHENBERG, C.J., and EMAS and LOGUE, JJ.
   EMAS, J.

In these consolidated appeals, Agritrade L.P. and Agritrade Lending, S.A. appeal partial final summary judgments entered against them in favor of Antonio Quercia and Agro Supply, S.A., and Juan Curbelo appeals final judgment entered against him, following a jury trial, in favor of Agro Supply, S.A. For the reasons that follow, we affirm in part and reverse in part.

BACKGROUND AND PROCEDURAL HISTORY

Agritrade L.P. ("LP") and Agritrade Lending, S.A. ("Lending") are in the business of exporting agricultural products from the United States to Venezuela. Juan Curbelo ("Curbelo") is a member of LP and Lending, as well as several other related Agritrade companies. Antonio Quercia, a citizen of Venezuela, is the sole shareholder of Agro Supply, S.A. ("Agro Supply").

On March 14, 2012, Agritrade manager/agent Ruben Sierra sent a letter on generic Agritrade letterhead, indicating an agreement for Quercia to "send funds" in the amount of $15 million "as an investment, which will accrue interest at an annual rate of 10%, to be renewed quarterly as Mr. Quercia may decide." The letter further provided that Quercia would give twenty days' notice when he wished to "withdraw the funds" and that the funds would be "received around the week of March 12, 2012." The letter was signed only by Sierra. (This letter will hereinafter be referred to as "the Letter of Intent.")

On March 29, 2012, Sierra, on behalf of Lending, executed a "Revolving Promissory Note" evincing a loan from Quercia (identified as the "Payee") to Lending (identified as the "Maker"). Under the terms of the note, the principal was due on or before June 26, 2012, and as the Letter of Intent had indicated, fixed an interest rate of ten percent per annum. Quercia transferred the funds from his company Agro Supply's bank account to LP, who later allegedly transferred the funds to Lending.

On June 26, 2012, the day the note was to become due, another "Revolving Promissory Note" was executed by Sierra in favor of Quercia (again identified as the "Payee"), but this time Sierra signed under an LP signature block. Nonetheless, Lending was still identified in the note as the "Maker." The remaining terms of the note were the same, with the exception that the due date for repayment was extended to December 1, 2012. No additional funds were transferred.

As of May 1, 2013, it is undisputed that $9.5 million of the loaned funds remained unpaid. On that date, Agro Supply sued Lending and LP, as well as several other related entities and individuals. After the defendants moved to dismiss the complaint based on, inter alia, Agro Supply's failure to join Quercia as an indispensable party, an amended complaint was filed, adding Quercia as a plaintiff. The amended complaint alleged the following counts:

Count I : Breach of contract by Quercia and Agro against LP, Lending, Agritrade Investments, and Agri Commodity Trade, LLC based on the Letter of Intent.
Count II : Breach of promissory note by Quercia against LP, Lending, Agritrade Investments, and Agri Commodity Trade, LLC based on the second promissory note. A copy of the second note was attached to the amended complaint.
Count III : Violation of Florida's Uniform Fraudulent Transfer Act ( section 726.105(1), Florida Statutes ), by Quercia and Agro against LP, Lending, Agritrade Investments, Agri Commodity Trade, LLC, Galo Group Limited ("Galo"), and Juan Curbelo, alleging Curbelo improperly caused the Agritrade entities to transfer at least $9.5 million to his alter-ego corporations and that the transfers were made with the actual intent to hinder, delay, and/or defraud the Agritrade entities (or alternatively, without receiving a reasonably equivalent value in exchange) and with the knowledge that a debt was owed to Quercia and Agro.
Count IV : Violation of Florida's Uniform Fraudulent Transfer Act ( section 726.106, Florida Statutes ), by Quercia and Agro against LP, Lending, Agritrade Investments, Agri Commodity Trade, LLC, Galo Group Limited ("Galo"), and Curbelo, alleging at least $9.5 million was transferred to the alter-ego corporations without receiving a reasonably equivalent value in exchange, resulting in the insolvency of the Agritrade entities.
Count V : Unjust enrichment by Quercia and Agro against LP, Lending, Agritrade Investments, Agri Commodity Trade, LLC, Galo Group Limited ("Galo"), and Curbelo.
Count VI : Fraud in the inducement by Quercia and Agro against Curbelo.
Count VII : Mere continuation liability by Quercia against Agricultural Services, LLC, alleging it was created in an attempt to shed the Agritrade entities of their debts in a conscious effort to fraudulently defraud, hinder and delay paying creditors.

LP and Lending both answered the amended complaint, asserting several affirmative defenses, including: the Letter of Intent was subsumed and replaced by the subsequent promissory notes; Sierra made a mistake in identifying LP in the promissory note, and Lending was the actual borrower; and Quercia and Agro must elect between their incompatible theories of recovery (unjust enrichment or breach of contract).

Quercia and Agro moved for summary judgment against Lending on counts I and II (breach of contract and breach of promissory note) and against LP on count V (unjust enrichment). Quercia and Agro also moved for summary judgment on Count VIII, the lost instrument count. Agritrade filed its own motion for summary judgment, claiming that the original plaintiff, Agro, lacked standing at the time the complaint was filed, which was not later cured by adding Quercia as a plaintiff.

On July 31, 2015, the trial court held a hearing on all the pending motions for summary judgment. As to Quercia and Agro's motion for summary judgment on counts I and II (breach of contract and breach of promissory note) against Lending, the court denied the motion as to Agro, but granted it as to Quercia. As to Quercia and Agro's motion for summary judgment on count V (unjust enrichment) against LP, the trial court denied the motion as to Quercia but granted it as to Agro. The trial court also granted Quercia and Agro's motion on count VIII (reestablishment of lost note). Finally, the trial court denied Agritrade's motion for summary judgment on the standing issue.

Thereafter, Quercia and Agro voluntarily dismissed the remaining counts against LP and Lending and the court entered final judgment as follows: (1) in favor of Quercia against Lending in the amount of $9.5 million plus interest; and (2) in favor of Agro against LP in the amount of $9.5 million plus interest.

Lending and LP appealed (Case No. 3D15-2392). While the appeal was pending, the case proceeded to trial on counts III (fraudulent transfer) and V (unjust enrichment) against Curbelo only. On both counts, the jury found in favor of Quercia and Agro and against Curbelo. The trial court denied Curbelo's motion to set aside the verdict, and entered final judgment against Curbelo, in favor of Agro Supply for $9.5 million plus interest on counts III (fraudulent transfer) and V (unjust enrichment); and against Curbelo in favor of Quercia for $9.5 million on counts III and V. The judgments all provide that "Plaintiffs Quercia and Agro Supply may collect up to the greater amount of any judgment against any one or more Defendants in this action but there shall be no double recovery."

Curbelo timely appealed the final judgments against him (Case No. 3D16-1181) and the appeals of all the judgments in this case were consolidated by this court.

THE SUMMARY JUDGMENTS

LP and Lending assert that the trial court erred in entering summary judgment on the breach of contract, breach of note, unjust enrichment and lost note counts because, inter alia, there were genuine issues of material fact as to: (1) who was entitled to enforce the note-Quercia, Agro Supply, or both; (2) who was the second note's maker; (3) whether there was mutual assent to form a contract with the letter of intent; and (4) who conveyed and who retained the benefit of the money lent. Further, LP and Lending assert that summary judgment was improper as a matter of law.

Summary Judgment-Counts I, II, and VIII-Quercia v. Lending

The undisputed evidence was that the promissory note identified Quercia as the "Payee" and Lending as the "Maker." Lending acknowledges that it borrowed money from Quercia, and that $9.5 million remained unpaid at the time the lawsuit was filed. Thus, the trial court properly granted summary judgment on the breach of contract and breach of note claims in favor of Quercia against Lending. Further, the trial court properly granted summary judgment in favor of Quercia and against Lending on the lost note count (Count VIII).

Summary Judgment-Count VIII-Agro Supply v. Lending

However, we agree with Lending, and Agro Supply concedes, that the trial court erred in granting summary judgment to Agro Supply on the lost note count. The undisputed evidence established that only Quercia, and not Agro Supply, was a party to the promissory note. We therefore reverse and remand to the trial court for the limited purpose of amending the final judgment on Count VIII.

Summary Judgment-Count V-Agro Supply v. LP

As to the unjust enrichment claim, LP argues that the trial court erroneously granted summary judgment against LP and in favor of Agro Supply because there were disputed issues of fact as to who owned the money/conveyed the benefit (Agro Supply or Quercia) and as to whether LP retained the benefit or transferred it to Lending.

"The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without first paying the value thereof to the plaintiff." Peoples Nat'l Bank of Commerce v. First Union Nat'l Bank of Fla., 667 So.2d 876, 879 (Fla. 3d DCA 1996). "At the core of the law of restitution and unjust enrichment is the principle that a party who has been unjustly enriched at the expense of another is required to make restitution to the other." Gonzalez v. Eagle Ins. Co., 948 So.2d 1, 3 (Fla. 3d DCA 2006).

At the time summary judgment was entered, the undisputed facts established: Agro Supply wired the $15 million directly to the bank account of LP; LP received those funds; and LP used those funds. Further, LP is the entity that made partial repayments of $5.5 million on the loan, depositing those payments directly into Agro Supply's bank account. LP also made certain interest payments on the loan, directly to Agro Supply. Although Quercia was the sole shareholder, the funds themselves were those of Agro Supply and Agro Supply transferred those funds to LP. Agro Supply clearly conferred a benefit on LP.

As for the second prong-whether LP retained the benefit-LP contends that the affidavit of its treasurer and board member, Rita Wulff, created an issue of fact, because she averred that although she provided Quercia with the wiring instructions for Lending's bank account, the money was mistakenly deposited into LP's bank account, and to remedy that mistake, LP and Lending "adjusted their respective books and records and made corresponding journal entries." However, Wulff did not state that LP actually transferred that money from its account to Lending's account. Rather, LP was the entity that actually paid back portions of the loan to Agro Supply on December 3, 2012 ($5 million) and on March 8, 2013 ($500,000). One month after the first installment was made (January 2, 2013), the alleged accounting adjustment was made. Further, Wulff acknowledged in her deposition that LP was the entity that used the loan proceeds.

As to the third element of an unjust enrichment claim, LP and Lending contend that Agro Supply did not suffer any harm because the undisputed evidence established the money loaned actually belonged to Quercia, not Agro Supply. However, it is undisputed that Agro Supply, a corporation, supplied the funds and therefore, the fact that the corporation might be a savings house for Quercia's money is irrelevant. LP and Lending failed to establish a lack of corporate formalities which would extinguish Agro Supply's interest in the loan proceeds it provided to LP.

LP and Lending also argue that Agro Supply cannot recover under the unjust enrichment count because it is barred by the existence of an express contract.

We disagree. In Florida, it is well-settled that "the law will not imply a contract where an express contract exists concerning the same subject matter." Real Estate Value Co. v. Carnival Corp., 92 So.3d 255, 263 n. 2 (Fla. 3d DCA 2012) (quoting Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984) ). See also Wiand v. Wells Fargo Bank, N.A., 86 F.Supp.3d 1316, 1332 (M.D. Fla. 2015) (same). There is no doubt that an express contract exists which "concerns the same subject matter." The trial court so found by granting summary judgment in favor of Quercia on the promissory note. The money was loaned only once. The amount due is the same, and the final judgment entered in favor of Agro Supply was for the same $9.5 million that was awarded to Quercia on his breach of contract and breach of note claims.

However, in this unique situation, the parties to the contract which "concerns the same subject matter" are not the parties between whom the claim for unjust enrichment lies. Instead, the parties to the instant contract were Quercia and LP, while the "parties" in the unjust enrichment claim were Agro Supply and LP. We find this distinction significant. In Variety Children's Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980), a hospital sued both parents of a child who had received medical care at the hospital for recovery of unpaid medical bills. The father had signed a written agreement to pay all charges not covered by insurance at the time the child was admitted. The mother did not sign the agreement. The trial court dismissed the hospital's complaint as to the mother, determining that the father's written agreement to pay precluded a claim for unjust enrichment against the mother. This court, on appeal, disagreed and reversed, holding that the hospital "may recover either from the father, by virtue of his express contract, or from the mother, pursuant to an implied in law contract." Id. at 1054. This court observed that "the long standing rule that an express contract supersedes an implied contract was derived from cases in which the same parties agreed to more than one conflicting contract. Those cases are distinguishable from the case before this court, which involves different parties to different contracts." Id. See also 17 C.J.S. Contracts § 7 (noting that "[t]he rule that the existence of an express contract excludes an implied contract has full effect only when the parties to the express contract are the same as the parties to the action.")

The court in Wilson v. EverBank, N.A., 77 F.Supp.3d 1202 (S.D. Fla. 2015), recognized Florida's law on this issue, distinguishing it from the New York law which holds otherwise. Wilson was among several plaintiffs who brought a class action against his mortgage company and several insurance companies regarding force-placed hazard insurance on mortgaged properties in Florida and other parts of the country. Wilson asserted, inter alia, claims for unjust enrichment against his lender, EverBank, and the insurance companies who charged him allegedly exorbitant premiums for that coverage. As to his claim for unjust enrichment against his lender, the court held that Wilson (and the other plaintiffs) could not maintain their unjust enrichment claims because their mortgage contracts precluded those claims. Id. at 1220 (citing to State Farm Mut. Auto. Ins. Co. v. Altamonte Springs Diagnostic Imaging, Inc., No. 6:11-cv-1373-Orl-31GJK, 2011 WL 6450769 at *5 (M.D. Fla. Dec. 21, 2011) for the proposition that "upon a showing that an express contract exists between the parties the unjust enrichment ... count fails.") However, as to the insurance company defendants (with whom Wilson and the other class members did not have an express contract), the court held that only the New York plaintiff's express contract with his lender barred his unjust enrichment claim against the insurance companies, because New York law differs from Florida in that " 'claims for unjust enrichment may be precluded by the existence of a contract governing the subject matter of the dispute even if one of the parties to the lawsuit is not a party to the contract.' " Id. 1235 (quoting Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc., 837 F.Supp.2d 162, 202 (S.D.N.Y. 2011) ). The Florida and Illinois plaintiffs' claims for unjust enrichment survived because "under Florida and Illinois law, those agreements do not govern Plaintiffs' relationship with the Insurer Defendants." Id. at 1236. See also Kowalski v. Jackson Nat'l Life Ins. Co., 981 F.Supp.2d 1309 (S.D. Fla. 2013) (holding where insured not a party to the insurance policy, the existence of that policy does not preclude an unjust enrichment claim against a non-party to the contract.) Compare, Fulton v. Brancato, 189 So.3d 967 (Fla. 4th DCA 2016) (holding trial court should not have allowed unjust enrichment claim against defendant and her agency where the jury found an express agreement between the defendant's agency and the buyers' agency.) Accordingly, the existence of an express contract between Quercia and LP did not bar Agro Supply's unjust enrichment claim against LP. We therefore affirm.

THE FINAL JUDGMENT FOLLOWING TRIAL

The second appeal is from the two final judgments entered in favor of Quercia and Agro Supply, and against Curbelo, following a jury verdict which found Curbelo liable for unjust enrichment and fraudulent transfer. The amended complaint alleged that Curbelo was the alter ego of all the Agritrade companies, which all operated with a lack of attention to corporate formalities and under the sole control of Curbelo. The complaint also alleged that Curbelo fraudulently transferred funds to Galo Group, another company that was Curbelo's alter ego, "in furtherance of Curbelo's wrongful and fraudulent scheme to unjustly enrichment himself and to improperly recoup monies from the Agritrade Entities."

As to the unjust enrichment claim, Curbelo argues that it should be reversed because, inter alia, Quercia and Agro Supply did not confer a direct benefit on Curbelo; the claim was based on a veil-piercing theory that was never pled; and there was no evidence of an alter-ego relationship. Alternatively, Curbelo asserts that this court should reduce the amount of interest awarded because contractual interest is not available on a claim for unjust enrichment. We find that the veil-piercing theory was properly pled, and further, that competent, substantial evidence supported the jury's determination that an alter-ego relationship did exist and that a direct benefit was conferred on Curbelo. We affirm without discussion the other issues raised by Curbelo on appeal.

CONCLUSION

We affirm the trial court's final judgments against LP, Lending and Curbelo, except for the judgment entered in favor Agro Supply against LP on the lost note count (Count VIII). We reverse that judgment and remand for the trial court to amend that portion of the final judgment which entered judgment in favor of Agro Supply against LP on Count VIII. In all other respects, the judgments are affirmed.

Affirmed in part, reversed in part, and remanded with directions.

      There are several related Agritrade entities, including LP and Lending. When referred to in general, all of the companies, including LP and Lending, will be identified as "Agritrade."

      Quercia and Agro alleged that these other entities, along with Lending and LP, "operate as a single joint venture business with overlapping ownership, employees, business objectives, business functions and funds."

      Quercia and Agro alleged that Curbelo "exercised complete control and dominion over" Galo and the Agritrade entities and that Galo, a BVI company, is merely Curbelo's alter ego. At some point during the litigation, Galo was dismissed for lack of personal jurisdiction.

      Quercia and Agro later amended the amended complaint to allege an additional lost instrument count (Count VIII) because they could not locate the second promissory note.

      Trial also proceeded on count VII against Agricultural Services for mere continuation liability. After a jury verdict in favor of Agro Supply and Quercia, the court entered a final judgment in their favor against Agricultural Services for $9.5 million plus prejudgment interest. Agricultural Services has not appealed.

      See also the discussion by the Fulton court regarding the fact that there was no evidence that the plaintiff suffered any additional damages by the defendant and her agency other than the damages that were incurred as a result of the breach of contract by the defendant's agency. Fulton, 189 So.3d at 970. The court held that the trial court, following the jury verdict, should have granted the defendant and her agency's motions for a judgment notwithstanding the verdict ("JNOV") to relieve the defendant and her agency from damages as a result of the unjust enrichment claim "once the jury determined a finite amount of damages attributable for the buyers' agency's breach of contract." Id.

      We also note our agreement with the trial court's determination, articulated in the final judgments dated May 3, 2016, that there shall be no double recovery in this action by Quercia and Agro Supply.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan LEWIN, etc., Appellant, v. Richard GOLDMAN, et al., Appellees.
    No. 3D16-2718
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017
    Pollack, Pollack, & Kogan, LLC, and Lyudmila Kogan and Gary W. Pollack ; GrayRobinson, P.A., and Jack Reiter, for appellant.
    Shendell & Pollock, P.L., and Diran V. Seropian, Matthew A. Tornincasa, and Jonah D. Kaplan (Boca Raton), for appellees Paul M. Cowan and Golden & Cowan, P.A.; Greenberg Traurig, P.A., and Julissa Rodriguez and Stephanie L. Varela, for appellees Mitchel Goldman, Richard Goldman, Kenneth Goldman, Ethan Goldman, and Andrea Carless.
    Before SALTER, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097 (Fla. 3d DCA 2011).


author: SALTER, J.

text:
    ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Petitioner, v. HALLANDALE OPEN MRI, LLC, a/a/o Alexia Blake, Respondent.
    No. 3D16-38
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017.
    Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm (Tampa); Cozen O'Connor, and Peter J. Valeta (Chicago, IL), for petitioner.
    Marlene S. Reiss, for respondent.
    Before SALTER, LOGUE and SCALES, JJ.
   SALTER, J.

On Motions for Rehearing and for Certification

On consideration of the respondent's motion for rehearing and motion to certify questions of great public importance, and the response, we withdraw our opinion in this case issued April 19, 2017, and replace it with the opinion which follows.

I. The Underlying Legal Issue and Final County Court Judgment

This case involves a dispute between Allstate Fire and Casualty Insurance Company ("Allstate") and a medical provider (Hallandale Open MRI, or "Hallandale") regarding a single legal issue: whether a personal injury protection ("PIP") automobile insurance policy issued by Allstate contains language sufficiently specific to limit provider reimbursements to 80% of the maximum charges described in section 627.736(5)(a)2.f., Florida Statutes (2010). The issue arose in the Miami-Dade County Court, based on stipulated facts pertaining to the policy and the medical services provided by Hallandale. In October 2013-a time when this Court had not ruled on the specific legal issue presented to the County Court-the County Court issued a directed verdict for Hallandale (determining that the Allstate policy language was insufficiently specific to invoke the statutory limitations on payment) and entered final judgment for Hallandale in the amount of $407.26, plus prejudgment interest.

II. Allstate's Appeal to the Circuit Court Appellate Division

Allstate appealed to the appellate division of the Miami-Dade Circuit Court. Allstate did not seek a stay pending review, and Hallandale did not seek execution or other enforcement of the County Court judgment. In December 2015, the three-judge Circuit Court appellate division panel affirmed the final judgment against Allstate. The five-page opinion affirming the County Court judgment surveyed pertinent case law from the Florida Supreme Court and several of Florida's District Courts of Appeal.

In Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 159 (Fla. 2013), the Florida Supreme Court held that PIP insurers were required to notify insureds by specifically electing the limitations in the Medicare fee schedules in order to apply them to medical reimbursement claims. The appellate division then observed that the First and Fourth District Courts of Appeal had issued conflicting decisions regarding the sufficiency of such notice, in Allstate Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1st DCA 2015) (policy provided legally sufficient notice), and Orthopedic Specialists v. Allstate Insurance Co., 177 So.3d 19 (Fla. 4th DCA 2015) (identical policy language not legally sufficient). The appellate division also noted that this Court had not issued a controlling decision on the issue.

After surveying the reported decisions, the Circuit Court appellate division found the policy language insufficient to support the statutory limitation computed using the Medicare fee schedules and, as already noted, affirmed the County Court final judgment in favor of Hallandale. In early 2016, Allstate filed a petition seeking second-tier certiorari from the appellate division decision. Allstate's petition cited four Miami-Dade Circuit Court appellate division opinions that directly conflicted with the appellate division decision (and on the specific, controlling legal issue within the decision) involved in the present case.

Hallandale opposed the second-tier petition on jurisdictional and substantive grounds. Allstate did not seek a stay of enforcement of the County Court's judgment, nor did Hallandale seek to enforce the judgment, while the petition was pending.

III. Florida Supreme Court Accepts Review of the Conflict Cases from the First and Fourth Districts

On January 20, 2016, the Florida Supreme Court accepted jurisdiction to review the two 2015 District Court of Appeal conflict cases from the First and Fourth Districts, Stand-Up MRI and Orthopedic Specialists, cited above. Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298, 2016 WL 282060 (Fla. Jan. 20, 2016) (accepting jurisdiction). A decision resolving the conflict issue was issued in January 2017 (discussed further below). Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017).

IV. An Intervening Decision by This Court on the Conflict Issue

While the petition for second-tier certiorari was pending in this Court and the conflict case was pending in the Florida Supreme Court, a panel of this Court issued a decision on the same issue, as certified by the Miami-Dade County Court for direct review under Florida Rule of Appellate Procedure 9.030(b)(4)(A) (discretionary review of an order certified by the county court to be of great public importance).

Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So.3d 169 (Fla. 3d DCA 2016) (holding that the Allstate policy language was clear and unambiguous, as determined by the First District in Stand-Up MRI ). That decision, issued in July 2016, also certified conflict with the Fourth District opinion in Orthopedic Specialists.

IV. This Court's Dismissal of Allstate's Petition

Two months after this Court's opinion deciding the conflict issue, but while the conflict was still pending before the Florida Supreme Court, we dismissed Allstate's petition for lack of jurisdiction. Judge Logue dissented in an opinion which stressed the importance of exercising jurisdiction when the County Court and Circuit Court appellate division decisions on an issue are conflicting, and particularly when the District Court for that district has issued an opinion resolving the conflict. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 208 So.3d 741 (Fla. 3d DCA 2016). Applying Florida Supreme Court case law limiting our exercise of second-tier certiorari jurisdiction, particularly Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla. 2010), and Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003), we concluded that the Circuit Court appellate division panel had not violated any clearly established principle of law resulting in a miscarriage of justice. Custer, 62 So.3d at 1092.

Although this Court had by then decided the conflict issue in favor of Allstate's position, the Florida Supreme Court had not yet ruled on the conflict at that time, and we observed that the Circuit Court appellate division did not have our decision before it when it ruled at the end of 2015.

V. Allstate's Motion for Rehearing; the Supreme Court's Opinion

In November 2016, Allstate moved for rehearing and rehearing en banc regarding our dismissal opinion, contending that we had jurisdiction to consider the petition for second-tier certiorari and that our own decision on the merits of the conflict issue required us to quash the Circuit Court appellate division's decision. While those motions were being briefed and considered, the Florida Supreme Court issued its decision on the conflict issue, Allstate Insurance Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017). That decision concluded that Allstate's policy language on reimbursement limitations under the PIP statute was legally sufficient and not ambiguous, a decision consistent with this Court's panel decision in Florida Wellness a few months earlier, and contrary to the Circuit Court appellate division opinion under consideration in the present case.

Had the Florida Supreme Court's opinion on the conflict issue or this Court's opinion on that issue been available to the Circuit Court appellate division as it considered the question in late 2015, the appellate division panel would have been duty bound to follow either of those decisions. Given the continued, apparent willingness of Allstate and Hallandale to continue the proceedings in the present case, however, we initially concluded that the Florida Supreme Court's resolution of the conflict issue in January 2017 compelled a new analysis and different result.

Allstate's motion for rehearing, supplemented by the Supreme Court opinion in its favor, persuaded a majority of this panel that we should take jurisdiction of the petition for second-tier certiorari, apply that decision to the same issue presented in the petition, and quash the December 2015 Circuit Court appellate division decision in favor of Hallandale. We granted Allstate's motion for rehearing, exercised jurisdiction, and applied Orthopedic Specialists as proposed by Allstate. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly D893, 2017 WL 1401447 (Fla. 3d DCA Apr. 19, 2017).

In a vigorous dissent, Judge Scales focused on the retroactive effect of such a result and the absence of error in the appellate division's decision at the time it considered the case and issued its opinion:

Employing a de novo standard of review, the circuit court's appellate division relied upon the appropriate precedent to affirm the trial court's construction of Allstate's insurance policy. The appellate court's only "error" was failing to accurately predict which of two persuasive, yet competing, precedents the Florida Supreme Court ultimately would adopt.

Id. at D897 (Scales, J., dissenting).

VI. Hallandale's Motion for Rehearing and Certification

Hallandale then moved for rehearing, rehearing en banc, and certification of two questions of great public importance to the Florida Supreme Court:

DOES A DISTRICT COURT'S SECOND-TIER CERTIORARI JURISDICTION EXTEND TO REVIEW A CIRCUIT APPELLATE COURT'S DECISION THAT DOES NOT CONSTITUTE A DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW, BUT RATHER CHOSE BETWEEN TWO NON-BINDING DISTRICT COURT DECISIONS IN THE ABSENCE OF A BINDING DECISION FROM THE DISTRICT IN WHICH THE CIRCUIT COURT SITS?
CAN A FLORIDA SUPREME COURT DECISION BE APPLIED RETROACTIVELY TO A CIRCUIT COURT APPELLATE DECISION THAT BECAME FINAL, AND WHICH DOES NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW, PRIOR TO THE FLORIDA SUPREME COURT'S ISSUANCE OF ITS DECISION?

In these motions, Hallandale emphasized that the present case is not a "pipeline" case or one in which the county court judgment is anything other than a final judgment. "In short, as the dissent eloquently recognizes, retroactive application of the Florida Supreme Court's decision to a case that already has reached its appellate finality is simply not supported by the law." Respondent Hallandale's Mot. For Reh'g, etc., 5 (May 4, 2017). Upon consideration of the motions and Allstate's response, a majority of the panel has concluded that Hallandale's arguments are well taken.

VII. Conclusion

For these reasons, on rehearing we dismiss Allstate's petition for certiorari taken from the decision of the Circuit Court appellate division for lack of jurisdiction.

Our colleague's dissenting opinion makes the important argument that second-tier certiorari jurisdiction should extend to pending intra-district appellate division conflict cases for the same reason that the district courts may hear appeals en banc, and for the same reason that the Florida Supreme Court exercises jurisdiction to resolve conflicting decisions among the district courts.

On the motion for certification of questions of great public importance, we certify a single, rephrased question as follows:

DOES A DISTRICT COURT OF APPEAL HAVE JURISDICTION TO GRANT A PETITION FOR SECOND-TIER CERTIORARI IN A CASE IN WHICH THERE IS DIRECT CONFLICT ON A DETERMINATIVE ISSUE AS BETWEEN (A) THE CIRCUIT COURT APPELLATE DIVISION CASE WHICH IS THE SUBJECT OF THE SECOND-TIER PETITION, AND (B) A DECISION BY A DIFFERENT CIRCUIT COURT APPELLATE DIVISION PANEL WITHIN THE SAME DISTRICT, WHEN EACH OF THE CONFLICTING DECISIONS WAS RENDERED IN THE ABSENCE OF A CONTROLLING DECISION BY THE DISTRICT COURT FOR THAT DISTRICT?

Motion for rehearing granted; petition dismissed; question certified to the Florida Supreme Court as a question of great public importance.

SCALES, J., concurs.

I fully concur that the question presented by the facts of this case be certified to the Florida Supreme Court as one of great public importance.

As this case illustrates, circuit court judges sitting in an appellate capacity will often issue rulings that conflict with the appellate rulings of other circuit court judges in the same circuit. Thus, as happened here, a person filing in county court and appealing to the circuit court obtains a result completely at odds with the result obtained by a different person filing in the exact same county court and appealing to the exact same circuit court. Because there are no further appeals as of right, a litigant wins or loses based upon the predilections of the individual judges who heard the trial and appeal and not upon a coherent body of law that applies to all litigants. Here, this failure in the system is particularly unfortunate because the decision under review is contrary to a recent decision of the Florida Supreme Court. The question certified by the majority properly provides the Florida Supreme Court a platform to decide whether and how to address this problem.

Where I respectfully disagree with my brothers in the majority is that I believe an incorrect circuit court appellate decision in these circumstances-an incorrect legal decision that treats litigants differently than the same circuit court treated other similarly situated litigants-constitutes a departure from the most essential requirement of law: equality before the law. It results in exactly the type of miscarriage of justice without other remedy which certiorari exists to correct.

In reaching a contrary result, the majority's analysis is both logical and principled. But I give greater weight to the defining characteristic of common law certiorari whereby "the district courts must be allowed a large degree of discretion" to identify "legal errors serious enough to constitute a departure from the essential requirements of law." Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So.3d 712, 722 (Fla. 2012) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla. 1995) ). "It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari." Id. at 722 (quoting Combs v. State, 436 So.2d 93, 95-96 (Fla. 1983) ).

I also believe the majority errs by looking solely from the perspective of the circuit court judges who made the incorrect appellate decision under review to decide whether the incorrect decision departs from the essential requirements of law. Nader teaches that district courts of appeal must lift their vision when applying certiorari and also consider the need to facilitate Supreme Court review to ensure a clear body of binding precedent that treats all litigants properly and equally. Nader, 87 So.3d at 724-25 (approving the district court's finding of a departure from the essential requirements of law based in part on the "dramatic ramifications" of refusing further review by way of certiorari).

My position can be summarized as follows: (1) a defect in our court system currently prevents the establishment of clearly established principles of law governing a wide array of county court issues; (2) Florida courts historically issued writs of certiorari to review conflicts among lower appellate decisions; (3) issuing a writ of certiorari to resolve a conflict among circuit court decisions is not a second appeal because the review focuses on clarifying the law and not the outcome for the litigants; and (4) the current standard for second-tier certiorari permits review to resolve conflicts in lower appellate decisions.

ANALYSIS

(1) A defect in our court system prevents the establishment of clearly established principles of law governing a wide array of county court issues.

A properly functioning system of appellate courts will necessarily produce conflicting decisions. And a properly functioning system of appellate courts will necessarily have a method to resolve those conflicts. For example, the Florida Supreme Court resolves conflicts that arise among the district courts of appeal. Art. V, § 3(b)(3), Fla. Const. Of course, the district courts are not the only appellate courts in Florida. The circuit courts serve as appellate courts when reviewing orders of the county courts and local governments. Art. V, § 5(b), Fla. Const.; § 26.012(1), Fla. Stat. (2016). Just as the Florida Supreme Court resolves conflicts among the district courts of appeal, the district courts should similarly resolve conflicts among the circuit courts acting in their appellate capacity. But this is not happening.

It is a well-known, but little-discussed defect in our court system that litigants in the county courts often have their cases decided based upon conflicting circuit court appellate decisions. As occurred in the case below, litigants in the exact same circumstances filing in the exact same county court receive different outcomes based on conflicting case law. The instant case is only a recent example.

Twenty years ago, this defect was identified by the Second District in an opinion written by Judge Altenbernd. As a result of this "significant problem within our existing judicial structure," Judge Altenbernd wrote, referring to the confused and conflicting precedents governing county courts, "there may never be 'clearly established principles of law' governing a wide array of county court issues, including PIP issues." Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997). The Supreme Court of Florida agreed and adopted Judge Altenbernd's language in full in Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla. 2000) (quoting Stilson, 692 So.2d at 982 ).

The idea that "there may never be 'clearly established principles of law' governing a wide array of county court issues" contradicts an essential limitation to judicial discretion-that "[d]ifferent results reached from substantially the same facts comport with neither logic nor reasonableness." Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). Accepting this idea would constitute a fundamental breakdown in the hierarchal system of our appellate courts, which is designed precisely to prevent different results reached from substantially the same facts. Id.

(2) Florida Courts historically issued writs of certiorari to review conflicts in lower appellate decisions.

Not only does the United States Supreme Court routinely issue writs of certiorari to review conflict, but the Florida Supreme Court also historically issued writs of certiorari to review conflict.

In Lake v. Lake, 103 So.2d 639, 643 (Fla. 1958), for example, the Florida Supreme Court expressly acknowledged that it could issue a writ of certiorari under article V, section 4(2), of the Florida Constitution (1957) to resolve a conflict on the face of a district court opinion:

If in a particular case an opinion is rendered by a district court of appeal that prima facie conflicts with a decision of another district court of appeal or of the Supreme Court on the same point of law, the writ of certiorari may issue and, after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any conflict may be reconciled.

Lake, 103 So.2d at 643 (emphasis added). See also Foley v. Weaver Drugs, Inc., 177 So.2d 221, 225 (Fla. 1965) (holding that the Florida Supreme Court "may review by conflict certiorari a per curiam judgment of affirmance without opinion where an examination of the record proper discloses that the legal effect of such per curiam affirmance is to create conflict with a decision of this court or another district court of appeal"); Gibson v. Maloney, 231 So.2d 823, 824 (Fla. 1970) ("It is conflict of Decisions, not conflict of Opinions or reasons that supplies jurisdiction for review by certiorari."). While these decisions were abrogated by the subsequent amendments to the constitution which removed all certiorari jurisdiction from the Florida Supreme Court, they illustrate how conflict certiorari has been part of our constitutional history.

It should come as no surprise that certiorari is flexible enough to review conflicts. In the appropriate context, certiorari is flexible enough to provide a full-blown appeal of right. In De Groot v. Sheffield, 95 So.2d 912, 915 (Fla. 1957), the Supreme Court concluded that a party to an administrative proceeding was entitled to an appeal as a matter of right because the proceeding was quasi-judicial in nature. No statute provided the means for appeal, however, so the Florida Supreme Court held that the proper vehicle to provide the missing plenary appeal was the circuit court's discretion to issue a common law writ of certiorari. Id. at 915-16 ("The writ is available to obtain review in such situations when no other method of appeal is available.").

In subsequent decisions, the Florida Supreme Court made clear that this use of common law certiorari was not subject to the restrictive standard often associated with common law certiorari in other contexts: "[a]lthough termed 'certiorari' review, review at this level is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal." Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000). The Florida Supreme Court subsequently codified the De Groot line of cases in Rule 9.100(c)(2) of the Florida Rules of Appellate Procedure where it remains today. Indeed, common law certiorari has provided a plenary appeal as of right in other circumstances as well.

Just as common law certiorari can be used to provide a required but missing plenary appeal as explained in De Groot, it can be used to provide a less-than-plenary review based on an express conflict when necessary to avoid the current situation in which "there may never be 'clearly established principles of law' governing a wide array of county court issues."

(3) Issuing a writ of certiorari to resolve a conflict in circuit court appellate decisions is not a second appeal because the review focuses on clarifying the law and not the outcome for the litigants.

The main objection to granting certiorari to review a conflict is that it may allow a "second appeal." See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092-93 (Fla. 2010). But as the Florida Supreme Court explained in Lake, the grant of certiorari to resolve a conflict is not a second appeal because the focus is no longer on resolving the dispute between the parties but instead on resolving the conflict in the law.

In Lake, the Supreme Court emphasized the importance of not granting a second appeal, which is both wasteful and abusive: "[w]hen a party wins in the trial court he must be prepared to face his opponent in the appellate court, but if he succeeds there, he should not be compelled the second time to undergo the expense and delay of another review." Lake, 103 So.2d at 642. A party, the Court concluded, "is not entitled to two appeals." Id. But the Court in Lake further explained that issuing a writ of certiorari to resolve a conflict is not a second appeal because such review "deal[s] with matters of concern beyond the interests of the immediate litigants." Id. When granting certiorari to resolve a conflict between appellate decisions, "at this late day in the progress of the litigation the standardization of decisions on the same point of law will have become primary, the effect upon the immediate litigants consequential." Id. at 643.

Perhaps the most-cited reason why second-tier certiorari cannot be allowed to become a second appeal is that doing so would afford a litigant in the county court (which is a trial court of limited jurisdiction) more appeals than a litigant in the circuit court (which is a trial court of general jurisdiction). But issuing the writ to resolve conflict does not give a county court litigant more appellate opportunities than the circuit court litigant because the circuit court litigant has the right to seek further review if the district court's review of its case leads to an opinion that conflicts with the decision of another district.

The issuance of a writ of certiorari by a district court to resolve conflicts in circuit court appellate decisions is no more the granting of a second appeal than the Supreme Court's exercise of conflict jurisdiction to resolve conflicts among district court decisions. Far from being a usurpation of the district court's jurisdiction and prerogative as a final appellate court, conflict certiorari is a proper and necessary adjunct to it. Thus, granting a petition for writ of certiorari to resolve conflicts does not equate to granting a second appeal.

(4) The current standard for second-tier certiorari allows review to resolve conflicts in lower appellate decisions.

Finally, I believe the current standard for second-tier certiorari includes discretionary review to quash incorrect decisions that conflict with other circuit court appellate opinions in the same circuit and district. The standard for second-tier certiorari is whether the circuit court's decision denies procedural due process or departs from the essential requirements of law resulting in a miscarriage of justice. Custer, 62 So.3d at 1092. While a court considering issuing the writ must "not usurp the authority of the trial judge or the role of any other appellate remedy, [it must] preserve the function of this great writ of review as a 'backstop' to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review." Custer, 62 So.3d at 1092 (quoting Heggs, 658 So.2d at 531 n.14 ). "Thus, the district court's exercise of its discretionary certiorari jurisdiction should 'depend on the court's assessment of the gravity of the error and the adequacy of other relief.' " Custer, 62 So.3d at 1092 (quoting Heggs, 658 So.2d at 531 n.14 ).

The analysis concerning the gravity of the error cannot be reduced to a mechanical formula. The Supreme Court has explained that it is impossible to create an exhaustive list of the sort of egregious errors encompassed by second tier certiorari. Instead, "the district courts must be allowed a large degree of discretion" to identify "legal errors serious enough to constitute a departure from the essential requirements of law." Nader, 87 So.3d at 722 (quoting Heggs, 658 So.2d at 528 ). This "discretion and flexibility" is necessary because "a reviewing court is drawing new lines and setting judicial policy as it individually determines those errors sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari." Id. at 723. "It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari." Id. at 722 (quoting Combs v. State, 436 So.2d 93, 95-96 (Fla. 1983) ).

Applying this discretion to identify errors sufficiently egregious to constitute a departure from the essential requirements of law, it is hard to imagine a more grievous error than to allow identical cases in the same county court to be decided differently based upon conflicting appellate decisions and to have identical appeals to the same circuit court be decided differently based upon conflicting circuit court appellate decisions. Moreover, as occurred here, because there is no process for further appeals, county court judges subsequently faced with similar issues are often left to choose which of the conflicting circuit court appellate decisions they will follow in a particular case. Leaving the outcome of a person's lawsuit to the predilection of individual judges, rather than to a coherent body of law that applies across the board to other persons filing lawsuits in the same court, constitutes a miscarriage of justice reflecting a departure from the most essential requirement of law: equality before the law.

The only reason we have appellate courts is to prevent exactly this sort of injustice. An appellate system that fails to prevent such an injustice is not fulfilling its purpose. The existence of this problem undermines the credibility of the appellate courts in the eyes of the general public. Conflicting results with identical facts look at best like judicial whimsy, at worst judicial tyranny. The dramatic and wide-reaching ramifications of the failure to allow review to resolve conflicts and thus by omission to cause identically situated litigants to receive conflicting outcomes is "sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari." Nader, 87 So.3d at 727 (quotation omitted).

In this regard, I believe the majority errs when it uses only the perspective of the circuit court judges who made the decision under review to determine whether their incorrect decision was a departure from the essential requirements of law. The Supreme Court in Nader clearly rejected such a mechanical approach.

In Nader, the Supreme Court upheld the Second District Court of Appeal's issuance of a writ of certiorari quashing a circuit court appellate decision. The circuit court appellate decision under review in Nader followed the decision of another district court which was the only decision on point at the time. Id. at 725. Looking from the perspective of the circuit court judges who made the decision under review, the circuit court judges clearly did not depart from the essential requirements of law because they were only doing what they were bound by law to do-obeying controlling precedent by following the only district court precedent on point. Id. Nevertheless, the Supreme Court approved the issuance of a writ of certiorari to quash their decision. The Supreme Court did so by giving weight, not just to error from the perspective of the circuit court judges, but also to the "wide-reaching ramifications" of failing to provide for further review. In particular, the Supreme Court cited with approval to the Second District's concern for the need to "authorize supreme court review" and establish "binding precedent" Id. at 724-25, factors which the majority opinion here does not adequately credit.

Concerning the adequacy of relief, there is no other suitable method of review. The county court's authority to certify issues of great public importance directly to the district courts of appeal is not adequate. The Second District in Stilson and the Florida Supreme Court in Ivey both acknowledged the existence of the county court's authority in this regard, and they both still concluded that "there may never be 'clearly established principles of law' governing a wide array of county court issues, including PIP issues." Ivey, 774 So.2d at 683 ; Stilson, 692 So.2d at 983. These statements by the Second District and the Florida Supreme Court confirm that the county court's ability to certify is not a solution. Unless one finds acceptable the idea that "there may never be 'clearly established principles of law' governing a wide array of county court issues, including PIP issues," the inescapable conclusion is that county court certification is simply not an adequate remedy for circuit court appellate conflicts.

This conclusion is borne out by experience. While the conflicting legal precedents in the circuit court at issue in this case were ultimately resolved by this court based on a county court certification, the conflict at issue here festered in the circuit court for years, causing identically situated parties who filed or defended suits in the same county court to receive diametrically different outcomes. And that resolution would not have helped the litigants in this case, but for our issuance of the writ. The history of this case and the many related cases show that the county court's authority to certify is not adequate to provide a timely resolution of the conflict.

On reflection, this fact should have been obvious from the beginning. Examination of the Florida Supreme Court's jurisdiction to review district court decisions suggests that the drafters never viewed a court's jurisdiction to review certified questions as an adequate replacement for a court's jurisdiction to resolve conflict. When the drafters removed the Florida Supreme Court's authority to issue writs of certiorari, they provided the Florida Supreme Court both the discretion to review certified issues and, separately, the discretion to review conflicts between the district courts. See Art. V, §§ 3(b)(3), (4), (7), (8), Fla. Const. The drafters would not have provided both avenues for review if they believed review by certification adequately addressed the need for review of conflicts.

History proved the drafters right. In 2015, for example, the Florida Supreme Court reviewed 33 cases certified as having great public importance but 864 cases based on conflict. As these figures show, the Supreme Court considers over 25 times more cases under conflict jurisdiction than certification jurisdiction. These court statistics indicate that the discretion to review certified questions is not an adequate replacement for the discretion to review conflicts.

Some parts of the legal community are exploring other ways to address the problem. Obviously, if and when another adequate solution to the problem of incorrect results in circuit court appeals which are inconsistent with other circuit court decisions in the same circuit and district becomes available, the analysis set forth in this opinion would suggest that second-tier certiorari would not be appropriate because another remedy was available. At the present time, however, no such method is available. Therefore, when considering "the adequacy of other relief," I can only conclude there is no other adequate relief at his time for incorrect circuit court appellate decisions that are inconsistent with other circuit court appellate decisions except certiorari.

Thus, based on both "the gravity of the error and the adequacy of other relief [,]" Custer, 62 So.3d at 1092, a district court has the discretion to issue a writ of certiorari to review an incorrect circuit court appellate decision that expressly and directly conflicts with another circuit court appellate decision in the same district.

CONCLUSION

The county and circuit courts acting in their appellate capacity deal with issues that touch the lives of the people of Florida in crucial ways. It is imperative that clear precedents be available to the judges and litigants doing this vital work. As judges, we cannot accept a system of appellate review in which "there may never be 'clearly established principles of law' governing a wide array of county court issues." See Ivey, 774 So.2d at 683. Like judge-made rules of procedure, judge-made interpretations of common law writs "should never be permitted to become so technical, fossilized, and antiquated that they obscure the justice of the cause and lead to results that bring its administration into disrepute." In re Gottschalk's Estate, 143 Fla. 371, 196 So. 844, 844 (1940).

Rather than resign ourselves to an unacceptable situation, condemn litigants to unequal treatment, and stand by while the prestige and credibility of the courts is lowered in the eyes of the public, the courts should develop this judge-made law to serve the needs of the courts, litigants, and people as they have in the past. See, e.g., De Groot, 95 So.2d at 915. Because incorrect appellate decisions of the circuit courts which are inconsistent with prior decisions of the circuit courts in the same circuit and district constitute miscarriages of justice and no other adequate remedy exists, the issuance of a writ of certiorari properly serves as the backstop to prevent this sort of grievous error.

      Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly D893, 2017 WL 1401447 (Fla. 3d DCA Apr. 19, 2017).

      Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr., Inc. a/a/o Mondy, 21 Fla. L. Weekly Supp. 627a (Fla. 11th Cir. Ct. April 3, 2014); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC a/a/o Politesse, 21 Fla. L. Weekly Supp. 989a (Fla. 11th Cir. Ct. June 23, 2014); Allstate Prop. & Cas. Co. v. Royal Diagnostic Ctr., Inc. a/a/o Leon, 22 Fla. L. Weekly Supp. 787a (Fla. 11th Cir. Ct. January 29, 2015); and Allstate Indem. Co. v. Gables Ins. Recov., Inc. a/a/o Jimenez, 22 Fla. L. Weekly Supp. 1146a (Fla. 11th Cir. Ct. June 8, 2015).

      Hallandale took no action to collect the judgment, or to compel Allstate to post a supersedeas bond, throughout this process.

      In a concurring opinion, Judge Logue maintained his position that this Court had jurisdiction to resolve the conflict in reported decisions of the Miami-Dade Circuit Court appellate division from the outset, and that the initial dismissal of the petition for second-tier certiorari was incorrect.

      Fla. R. App. P. 9.030(a)(2)(A)(v).

      Under this Court's Internal Operating Procedures, the issuance of this opinion on rehearing is deemed a denial as moot of Hallandale's motion for rehearing en banc.

      Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683, 684 (Fla. 11th Cir. Ct. Dec. 7, 2015) (listing conflicting cases and noting "[w]e respectfully disagree with our colleagues").

      The decision conflicts with the subsequently decided case of Allstate Insurance Co. v. Orthopedic Specialists, 212 So.3d 973, 974 (Fla. 2017).

      The holdings of these cases were abrogated by the 1980 Amendments to article V, section 3(b)(3), of the Florida Constitution. See, e.g., Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980).

      Some may argue that these cases involved "constitutional certiorari" under constitutional provisions that expressly authorized the Supreme Court to review conflict by certiorari. Art. V, § 4(2), Fla. Const. (1957) ("The Supreme Court may review by certiorari any decision of a district court of appeal ... that is in direct conflict with a decision of another district court of appeal or of the Supreme Court on the same point of law."). This "constitutional certiorari," it may be argued, provides an expanded form of certiorari including a broader type of review than that provided by the "common law certiorari" that the current constitution provides to district courts of appeal.
      This argument conflicts with other case law. While there may be differences between "constitutional certiorari" and "common law certiorari," the language in the constitution as of 1957 providing for the issuance of certiorari based on conflict is a type of certiorari that is more restrictive-not more expansive-than common law certiorari. The drafters granted the Florida Supreme Court the discretion to issue the writ-not in general-but only in certain limited circumstances including conflict. This is the only explanation that reconciles the Lake line of cases with the Supreme Court's contemporaneous decision in De Groot v. Sheffield, 95 So.2d 912, 915 (Fla. 1957) discussed later in this opinion.

      For example, certiorari as an appeal of right is available to obtain first-tier appellate review of a circuit court appellate decision to award attorney's fees or disqualify counsel. See, e.g., City of Miami Beach v. Deutzman, 180 So.3d 245, 245-46 (Fla. 3d DCA 2015) ("The order was the first ruling on the question of attorneys' fees. Properly viewed, our proceeding is not the second, but rather the first tier of appellate review.").

      "The policy behind this rule is simple. ... If, in cases originating in courts inferior to the circuit courts, another appeal from the circuit court is afforded in the guise of certiorari, then a litigant will have two appeals from the court of limited jurisdiction, while a litigant would be limited to only one appeal in cases originating in the trial court of general jurisdiction." Heggs, 658 So.2d at 526 n.4 ; see, e.g., Custer, 62 So.3d at 1093 ("A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of general jurisdiction.").

      See, e.g., Allstate Ins. Co. v. Gables Ins. Recovery Inc., a/a/o Moran, No. 13-305 AP (Fla. 11th Cir. Ct. May 18, 2016) (policy language not sufficient) (Lederman, Cohen, and Prescott, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir. Ct. Dec. 7, 2015) (policy language not sufficient) (Hogan-Scola, Cueto, and Orshan, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Politesse, 21 Fla. L. Weekly Supp. 989 (Fla. 11th Cir. Ct. June 23, 2014) (policy language sufficient) (Korvick, Bloom, and Walsh, JJ.); Allstate Indem. Co. v. Gables Ins. Recovery, Inc., a/a/o Jimenez, 22 Fla. L. Weekly Supp. 1146 (Fla. 11th Cir. Ct. June 8, 2015) (policy language sufficient) (Bernstein, Hendon, and Manno Schurr, JJ.); Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr. Inc., a/a/o Mondy, 21 Fla. L. Weekly Supp. 627 (Fla. 11th Cir. Ct. Apr. 3, 2014) (policy language sufficient) (Smith, Lobree, and Verde, JJ.).

      Florida Supreme Court, Supreme Court Monthly/Term/Yearly Statistics for the Period 01/01/2015-12/31/2015, http://www.floridasupremecourt.org/pub_info/documents/caseload/2015_Florida_Supreme_Court_Caseload.pdf (last visited March 15, 2017).

      One idea being floated is to create en banc circuit court panels. In most circuits, such panels would be "be impractical because of the large number of circuit judges that would be involved." State v. Lopez, 633 So.2d 1150, 1151 (Fla. 5th DCA 1994). But even if one untangled the problem of the size of such panels, en banc circuit court panels would not resolve conflicts between circuits within a district. Perhaps district-wide en banc circuit panels could be created drawn from, and with authority to bind, all circuits in a district. Such a panel, however, begins to resemble a district court of appeal, except that its decisions would not be reviewable by the Supreme Court. Any solution that fails to provide Supreme Court review to ensure ultimate state-wide uniformity is not adequate. In the final analysis, our court system must ensure there is only one body of law in Florida that applies equally to all persons within the jurisdiction of the Florida courts. While there may be other solutions to this problem, the simple and direct fix is second tier certiorari as described in this opinion.


author: ROTHENBERG, C.J.

text:
    Jason WEISSER, Esq., et al., and Paulo Vasallo, Appellants, v. Richard DOLAN, Esq., et al., Appellees.
    No. 3D17-123
    District Court of Appeal of Florida, Third District.
    Opinion filed November 29, 2017.
    Freeborn and Peters LLP, and Lawrence P. Ingram and Robert Stines (Tampa), for appellants Jason Weisser, Esq., et al.; Wasson & Associates, Chartered, and Roy D. Wasson, for appellant Paulo Vasallo.
    Klein Glasser Park & Lowe, P.L., and Robert M. Klein, Andrew M. Feldman, and Alex A. Diaz for appellees.
    Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
   ROTHENBERG, C.J.

In this legal malpractice case, defendants Jason Weisser, Esq., and Schuler, Halvorson, Weisser, Zoeller, and Overbeck, P.A. (collectively, "the Shuler Defendants"), and the plaintiff below, Paulo Vasallo ("Vasallo"), appeal a final summary judgment entered in favor of defendants Richard Dolan, Esq. ("Mr. Dolan"), and other associated defendants (collectively, "the Dolan Defendants"). Because the undisputed material facts entitled the Dolan Defendants to a judgment as a matter of law, we find that the trial court properly entered final summary judgment in favor of the Dolan Defendants, and thus, we affirm.

Background

Vasallo fell while pressure washing a roof in San Juan, Puerto Rico, on October 4, 2011, rendering him a paraplegic. Vasallo retained the Dolan Defendants on August 8, 2012 to pursue his personal injury action against the homeowners. Mr. Dolan sent a letter to the homeowners' insurance company on September 11, 2012, stating that he represented Vasallo in connection with a claim for personal injuries and requested information relating to the homeowners' insurance policy. Mr. Dolan sent two similar letters on November 15, 2012 and April 11, 2013.

On January 10, 2014, over two years after the accident, Mr. Dolan sent a letter to Vasallo informing him that: (1) the Dolan Defendants would no longer represent him; (2) the Dolan Defendants learned in September 2013, that Puerto Rico had a one-year personal injury statute of limitations; and (3) Vasallo should seek legal advice from another attorney.

After terminating his representation of Vasallo, Mr. Dolan received a letter from the Schuler Defendants on January 29, 2014, informing him that Vasallo had retained the Schuler Defendants to file a legal malpractice claim against the Dolan Defendants. On June 18, 2014, the Schuler Defendants, however, sent a letter to Vasallo informing him that the Schuler Defendants would not pursue a legal malpractice action against the Dolan Defendants because there was no evidence of a viable negligence claim against the homeowners, and thus, the Shuler defendants were terminating their representation of Vasallo.

Thereafter, Vasallo hired new counsel and filed a legal malpractice suit against the Dolan Defendants for negligently permitting the statute of limitations on his personal injury action in Puerto Rico to lapse. The Dolan Defendants moved for summary judgment, arguing that, as a matter of law, they did not cause any of Vasallo's damages because, as a result of the letters Mr. Dolan had sent to the homeowners' insurer, the statute of limitations had been tolled and had not run during their representation of Vasallo. The Dolan Defendants relied on the following tolling provision under Puerto Rican law: "Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknowledgment of the debt by the debtor." P.R. Laws Ann. tit. 31, § 5303 (2011). Based on this tolling provision, the Dolan Defendants argued that Mr. Dolan's initial September 11, 2012 letter to the homeowners' insurance company constituted an extrajudicial claim, which tolled the one-year statute of limitations for an additional year, and the subsequent letters further tolled the statute of limitations until April 11, 2014.

After the Dolan Defendants moved for summary judgment, Vasallo amended his complaint to add the Schuler Defendants and to assert a claim against them for legal malpractice. Thereafter, the Schuler Defendants filed a memorandum in opposition to the Dolan Defendants' motion for summary judgment and a cross-motion for summary judgment as to Vasallo's legal malpractice claim against the Schuler Defendants.

After conducting a hearing, the trial court found that the initial September 11, 2012 letter sent by Mr. Dolan constituted an extrajudicial claim, tolling the one-year statute of limitations. In reaching this conclusion, the trial court specifically relied on Sánchez Montalvo v. Autoridad de los Puertos, 153 D.P.R. 559 (P.R. Offic. Trans. 2001). In Sánchez Montalvo, an injured claimant's lawyer sent a letter to a putative defendant's liability insurer, which the Puerto Rico Supreme Court found put the insured on notice of a potential claim and extrajudicially tolled the one-year statute of limitations period. Id. at 571. The trial court determined that Mr. Dolan's letter was sufficiently similar to the letter sent in Sánchez Montalvo, and therefore, entered final summary judgment in favor of the Dolan Defendants. This appeal followed.

Analysis

This Court reviews summary judgment orders de novo, and summary judgment is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

It is well settled that a cause of action for legal malpractice has three elements: "(1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) the attorney's negligence resulted in and was the proximate cause of the loss to the client."

Sure Snap Corp. v. Baena, 705 So.2d 46, 48 (Fla. 3d DCA 1997). A lawyer owes a duty to a client to "exercise the degree of reasonable knowledge and skill which lawyers of ordinary ability and skill possess and exercise." Home Furniture Depot, Inc. v. Entevor AB, 753 So.2d 653, 655 (Fla. 4th DCA 2000).

In this case, Vasallo alleged that the Dolan Defendants were negligent in their representation by permitting the one-year statute of limitation to lapse, and that the Dolan Defendants' negligence resulted in and was the proximate cause of the harm

he suffered because he lost his right to file a personal injury claim against the homeowners in Puerto Rico. However, as a matter of law, the Dolan Defendants did not permit the statute of limitations to lapse.

We conclude that the trial court correctly determined that Mr. Dolan's initial September 11, 2012 letter to the homeowners' insurer constituted an extrajudicial claim, thereby tolling the statute of limitations, and that the subsequent letters further tolled the statute of limitations until after the Dolan Defendants' withdrawal from their representation of Vasallo. In Galib Frangie v. El Vocero de P.R., 138 D.P.R. 560, 567 (P.R. Offic. Trans. 1995), the Puerto Rico Supreme Court held that "[t]he tolling requirements for an extrajudicial claim are: (a) opportunity or timeliness , which requires that the action be filed before the limitation period runs out; (b) standing , is what gives a party the right to file an action; (c) identity , means that the action must exactly correspond to the right affected by the statute of limitations; and (d) fitness of the means employed."

In Sánchez Montalvo, the Puerto Rico Supreme Court found that all of the requirements of an extrajudicial act had been met for the letter to the defendant's liability insurer because the claimant's counsel informed the insurer: (1) that he represented the plaintiff; (2) that the plaintiff had suffered an accident on the premises; (3) of the date of the incident; and (4) that the plaintiff was receiving treatment. Sánchez Montalvo, 153 D.P.R. at 571.

In the instant case, based on the trial court's determination that Mr. Dolan's initial September 11, 2012 letter tolled the statute of limitations, and that the subsequent letters further tolled the statute until April 11, 2014, Vasallo still had a viable personal injury claim against the homeowners after the Dolan Defendants withdrew from representation. Thus, even though the Dolan Defendants may not have been aware that they had tolled the statute of limitations in Puerto Rico during their representation of Vasallo, the Dolan Defendants had, in fact, successfully tolled the statute of limitations in Puerto Rico during their representation of Vasallo, and the statute of limitations did not run until three months after their withdrawal from representation.

Conclusion

Because Vasallo only alleged that the Dolan Defendants were negligent by allowing the statute of limitations to run, we find that the trial court did not err as a matter of law by entering final summary judgment in favor of the Dolan Defendants due to their successful tolling of the statute of limitations prior to their withdrawal as Vasallo's counsel. We, therefore, affirm the trial court's order granting the Dolan Defendants' motion for summary judgment.

Affirmed.

      See P.R. Laws Ann. tit. 31, § 5298(2) (2011).

      It is disputed whether the scope of the Schuler Defendants' representation of Vasallo also included investigation of Vasallo's personal injury action in Puerto Rico.


author: SCALES, J.

text:
    DATA PAYMENT SYSTEMS, INC., etc., Appellant, v. Christopher CASO, etc., et al., Appellees.
    No. 3D17-2586
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Barakat Law, PA, and Brian Barakat, Coral Gables, for appellant.
    Garcia-Menocal & Perez, P.L., and Anthony J. Perez and Alfredo Garcia Menocal, Miami; The Carbonell Law Group, and Jorge Carbonell, Coral Gables, for appellees.
    Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
   SCALES, J.

Appellant, plaintiff below, Data Payment Systems, Inc. d/b/a One Payment ("Data Payment"), appeals a non-final order denying its motion seeking to temporarily enjoin appellees, defendants below, from violating covenants of noncompete agreements executed by two of the entity defendants. Because it appears from the transcript of the hearing on Data Payment's motion that the trial court (i) failed to consider the statutory presumption of irreparable injury potentially implicated in this case, and (ii) erroneously determined that Data Payment had an adequate remedy at law that precluded injunctive relief, we reverse and remand for the trial court to conduct a new hearing on Data Payment's motion.

I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

Data Payment is in the business of providing credit card and payment processing services to merchants in Florida and throughout the United States. Data Payment provides its services to its customers directly, and also through independent contractors referred to as "sub-offices."

In July 2016, Data Payment entered into a written sub-office agreement with defendant Ignite Payments, Inc. ("Ignite"). This written sub-office agreement (the "Ignite agreement") contains restrictive covenants, including a non-compete clause and a confidentiality clause. Defendant Juan Marcos Batista executed this agreement on behalf of Ignite.

Thereafter, Batista, along with another defendant, Christopher Caso, allegedly created defendant Onepay LLC ("Onepay"). In January 2017, Data Payment entered into a sub-office agreement with Onepay (the "Onepay agreement"). This agreement contains restrictive covenants nearly identical to those contained in the Ignite agreement, including a "twelve-month" non-compete clause. The Onepay agreement was also executed by Batista.

Thereafter, according to Data Payment, defendants Caso and Batista allegedly created a new business venture, Ireland Pay LLC ("Ireland Pay") to provide payment processing services in Florida in direct competition with Data Payment. Data Payment then terminated the Ignite and Onepay agreements for cause. Data Payment alleges that Caso and Batista, through their access to Data Payment's system by virtue of the Ignite and Onepay agreements, began to misappropriate Data Payment's trade secrets and to solicit Data Payment's customers. Caso also allegedly confronted a Data Payment employee at the place of business of a Data Payment customer and threatened the Data Payment employee with violence.

In June 2017, Data Payment initiated the instant action against Ignite, Onepay, Ireland Pay, Batista and Caso. Data Payment's multi-count Second Amended Complaint asserts claims for temporary and permanent injunctive relief, misappropriation of trade secrets, breach of contract, tortious interference, and to pierce the corporate veils of Ignite, Onepay and Ireland Pay. Relying on the noncompete and confidentiality provisions of the Ignite and Onepay agreements, Data Payment also sought emergency, temporary injunctive relief to enjoin: (i) each of the defendants from threatening any further acts of violence toward Data Payment and its employees; (ii) each of the defendants from retaining any of Data Payment's trade secrets or other confidential business information; (iii) Batista, Ignite, and Onepay from violating the restrictive covenants set forth in the Ignite and Onepay agreements; and (iv) Caso and Ireland Pay from aiding and abetting the other defendants in violating the restrictive covenants set forth in the Ignite and Onepay agreements.

In October 2017, the trial court conducted an evidentiary hearing on Data Payment's temporary injunction motion, and, on October 27, 2017, entered the appealed-from order denying Data Payment's motion. The otherwise unelaborated order denies Data Payment's motion "as to all parties for reasons stated on the record." The transcript from the hearing indicates that the trial court denied Data Payment's motion because (i) Data Payment presented no testimony "putting a quantification" on any irreparable harm Data Payment allegedly would suffer if the injunction were not entered, and (ii) the availability of other causes of action asserted by Data Payment established the existence of an adequate remedy at law. Indeed, after making those threshold determinations, the trial court concluded:

THE COURT: ... This Court need go no further because this Court has determined that there is specifically ... a remedy at law that the parties can and are pursuing in this matter. An [sic] injunctive relief is not warranted.... [T]his Court will not even reach the other aspects with respect to whether or not there was an ... existing contract or the parties were obligated under the agreement because ... having [an] adequate remedy at law, that defeats the injunctive relief request in and of itself. Thank you all.

Data Payment timely appealed the trial court's non-final order denying its motion seeking temporary injunction relief.

II. ANALYSIS

Generally, a movant seeking a temporary injunction must establish the following elements: (i) likelihood of irreparable harm and unavailability of an adequate remedy at law; (ii) substantial likelihood of success on the merits; (iii) injury to the movant that outweighs the harm to the opponent; and (iv) that an injunction will not disserve the public interest. See Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561, 564 (Fla. 3d DCA 2010). In this case, having found that Data Payment failed to satisfy the first prong, the trial court denied Data Payment's temporary injunction motion without conducting any further analysis as to the remaining three prongs. For the following reasons, we conclude that the trial court applied the incorrect law when conducting its inquiry as to the first prong, thus requiring another hearing on the matter.

First, Data Payment was not required to quantify the irreparable harm it would suffer if a temporary injunction were not entered. As it relates to an alleged breach of a non-compete agreement, irreparable injury "does not have reference to the amount of damage caused, but rather to the difficulty of measuring the amount of damages inflicted." Air Ambulance Network, Inc. v. Floribus, 511 So.2d 702, 702-03 (Fla. 3d DCA 1987) (quoting 42 Am. Jur. 2d Injunctions § 49 ). Therefore, "an injury is irreparable where the damage is estimable only by conjecture, and not by any accurate standard." Id.

Moreover, in 1996, the Florida Legislature adopted section 542.335 of the Florida Statutes to specifically validate, and codify the requirements for enforcement of, written covenants restricting or prohibiting competition. See Ch. 96-257, § 1, Law of Fla; Corp. Express Office Prods., Inc. v. Phillips, 847 So.2d 406, 409 n.2 (Fla. 2003) ("According to the Senate Staff Analysis, section 542.335 'substantially expands and clarifies the noncompete statute governing validity and enforcement of contracts in restraint of trade.' " (quoting Fla. S. Comm. on Judiciary, SB 282 (1996) Staff Analysis 5 (Mar. 27, 1996) ) ). Among other things, the statute creates a presumption of irreparable injury to the person seeking to enjoin a violation of a non-compete clause. See § 542.335(1)(j), Fla. Stat. (2016). This provision reads, in its entirety, as follows:

(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
....
(j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.

Id. (emphasis added).

Here, as the hearing transcript reveals, the trial court determined that, even if a violation of the non-compete agreements had occurred, Data Payment would not be entitled to injunctive relief because it had presented no evidence of irreparable harm. Thus, it appears that the trial court erred by not employing the statutory presumption of irreparable harm dictated by section 542.335(1)(j), which requires consideration of whether the subject agreements are lawful and enforceable. See § 542.335(1)(g), (j) Fla. Stat. (2013) ; Medco Data, LLC v. Bailey, 152 So.3d 105, 107 (Fla. 2d DCA 2014) ("Because the trial court made findings that would trigger the presumption of irreparable injury under section 542.335(1)(j) but failed to apply the presumption, we reverse the order on appeal and remand for reconsideration in light of the presumption.").

Second, it also appears from the hearing transcript that the trial court determined Data Payment is not entitled to injunctive relief because of the existence of other causes of action - seeking money damages against the defendants - pleaded by Data Payment. Whether Data Payment may prevail at trial for damages on any of its underlying causes of action against the defendants, however, does not ipso facto preclude entry of a temporary injunction in this case. See Reliance Wholesale, Inc., 51 So.3d at 566 ("[A]lthough a trial court may award damages for a breach of an employee's agreement not to compete, 'the normal remedy is to grant an injunction. This is so because of the inherently difficult, although not impossible, task of determining just what damage actually is caused by the employee's breach of the agreement.' " (quoting Capraro v. Lanier Bus. Prods., Inc., 466 So.2d 212, 213 (Fla. 1985) ) ); see also Smart Pharmacy, Inc. v. Viccari, 213 So.3d 986, 990 (Fla. 1st DCA 2016) ("Smart Pharmacy does not have an adequate remedy at law for the irreparable harm it has suffered, and may continue to suffer, as a result of Appellees' actions because 'monetary damages are difficult to prove with any certainty and ... even if provable, would not adequately compensate for all aspects of the violation of a covenant not to compete.' " (footnote omitted) (quoting King v. Jessup, 698 So.2d 339, 340 (Fla. 5th DCA 1997) ) ). The trial court, therefore, erred when it determined, as a threshold matter, that, because Data Payment had alleged other causes of action against these defendants seeking monetary damages, Data Payment had an adequate remedy at law that precluded Data Payment from obtaining injunctive relief for the alleged breach of the covenants not to compete.

III. CONCLUSION

In considering Data Payment's temporary injunction motion, the trial court neglected to consider section 542.335(1), the statutory provision applicable to injunctions sought for alleged violations of non-compete agreements. The trial court also erroneously determined that injunctive relief was unavailable to Data Payment because Data Payment had an adequate remedy at law by virtue of other causes of action pled by Data Payment. We, therefore, reverse the order on appeal and remand the case to the trial court for the court to conduct another hearing on Data Payment's temporary injunction motion.

Reversed and remanded, with instructions.

      The non-compete provisions provide:
      5.1 Covenant not to Compete: During the term of this Agreement and for eighteen (18) months after termination with cause by [Data Payment] or termination without cause by Sub Office, Sub Office and its principals shall not:
      (a) Engage directly or indirectly, in any business which is competitive with the business of [Data Payment] in providing payment processing services (a "Competitive Business") or purchase any property or assets relating to any Competitive Business within the state of Florida (the "Restrictive Territory").
      (b) Directly or indirectly own an interest in, manage, operate, join, control, lend money, or render financial or other assistance to any person that engages in any Competitive Business with Restrictive Territory.
      (c) Solicit or attempt to solicit any present, past, or pending Merchants doing business with [Data Payment].
      (d) Either party shall not hire or attempt to hire any employee, agent, or independent contractor of [Data Payment] or Sub Office, including any person who has terminated employment or an independent contractor relationship for any reason within six (6) month [sic] prior to the execution of this Agreement and for a six (6) month period after that termination.
      (e) In the event this Agreement is terminated by [Data Payment] without cause, Sub Office shall not be subject to Section 5.1(a).
      The Ignite agreement further provides that any violation of the non-compete provision "may cause irreparable harm to either party" such that "either party shall be entitled to seek an injunction in order to restrain any further violation ...."

      The Ignite agreement incorporates a confidentiality agreement that was separately executed by defendant Juan Marcos Batista on behalf of Ignite. The Ignite confidentiality agreement is a separate document appended to the Ignite sub-office agreement, and imposes a duty on Ignite to prevent disclosure of Data Payment's "Confidential Information," which is described as including the following:
      Technical and business information relating to [Data Payment's] proprietary ideas, patentable ideas, copyrights and/or trade secrets, existing and/or contemplated products and services, software, schematics, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as "Confidential Information" at the time of its disclosure.
      The confidentiality agreement further provides that, if there is a breach or threatened breach of the confidentiality agreement, Data Payment "shall be entitled to injunctive relief."

      While the Onepay agreement contains the same confidentiality addendum as did the Ignite agreement, the copy in the record is unexecuted. If Onepay ever executed a confidentiality agreement, it was not made a part of the record.

      We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

      "To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review." Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 436 (Fla. 4th DCA 2006). As relevant here, the trial court's determination of the legal standard to apply when a party seeks a temporary injunction based on the violation of a restrictive covenant is a question of law that we review de novo . See Medco Data, LLC v. Bailey, 152 So.3d 105, 107 (Fla. 2d DCA 2014).

      We express no opinion on the merits of Data Payment's motion, whether Data Payment is entitled to injunctive relief, or the other counts raised in Data Payment's Second Amended Complaint. Our reversal stems solely from what appears to be a misapprehension by the trial court of the irreparable harm/adequate remedy at law prong related to the alleged violations of the subject non-compete agreements.


author: Per Curiam.

text:
    Dylan GENTRY, Petitioner, v. Julie L. JONES, Secretary of the Department of Corrections, Respondent.
    No. 1D17-5349
    District Court of Appeal of Florida, First District.
    July 19, 2018 Rehearing Denied September 26, 2018
    Dylan Gentry, pro se, Petitioner.
    No appearance for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Ted YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1086
    District Court of Appeal of Florida, First District.
    July 17, 2018 Rehearing Denied September 20, 2018
    Ted Young, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.