Salame v. 1st Priority Restoration, Inc.
2017 Fla. App. LEXIS 7522
| Fla. Dist. Ct. App. | 2017Background
- In 2007 1st Priority Restoration provided water-extraction and cleaning services to Salame under a written contract that included a 1.5% per month service charge for nonpayment and an attorney’s-fee provision for collection actions.
- Salame failed to pay and alleged 1st Priority damaged a rug; 1st Priority sued for breach of contract, quantum meruit, civil theft, and check fraud.
- The circuit court granted summary judgment to 1st Priority on breach of contract but reserved damages and attorney’s fees; other claims were dismissed under the economic loss rule and the case was transferred to county court.
- The county court held a hearing, entered final judgment for 1st Priority, found 1st Priority the prevailing party entitled to attorney’s fees under the contract, and fixed fees and costs; Salame appealed arguing the court prematurely determined the prevailing party before resolving his set-off defense.
- The circuit court appellate division issued a per curiam affirmance; Salame petitioned this Court for second-tier certiorari to quash that affirmance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could determine the prevailing party for attorney’s fees before resolving Salame’s set-off defense | Court erred by deciding prevailing party before adjudicating set-off; prevailing-party determination depends on final resolution of all substantial issues | Even if set-off succeeded, invoice plus contractual service charges exceed any alleged set-off, so Salame cannot prevail | Trial court erred by prematurely determining prevailing party, but error did not cause miscarriage of justice; certiorari denied |
| Whether the appellate division’s per curiam affirmance departed from essential requirements of law | Affirmance departed from established law because prevailing party was decided without resolving all claims | Affirmance harmless because record shows Salame could not prevail even if set-off succeeded | No departure producing miscarriage of justice under second-tier certiorari standard; petition denied |
| Whether second-tier certiorari is available to correct this alleged error | Salame argues certiorari is proper because a clear legal principle was violated resulting in miscarriage of justice | 1st Priority (and majority) argue certiorari relief is inappropriate because error was harmless | Relief denied: certiorari is limited and not warranted absent miscarriage of justice |
| Whether factual re-weighing by this Court is permissible under second-tier review | Salame contends factual issues (set-off) must be resolved by lower court, not reversed on certiorari | Majority contends record facts show set-off could not overcome judgment, so harmless error | Dissent: Court exceeded certiorari scope by re-weighing facts; majority nonetheless denies certiorari on harmless-error grounds |
Key Cases Cited
- Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla. 1995) (scope of certiorari review and departure-from-essential-requirements standard)
- City of Ctr. Hill v. McBryde, 952 So.2d 599 (Fla. 5th DCA 2007) (definition of departure resulting in miscarriage of justice)
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla. 2010) (certiorari cannot correct mere legal error absent miscarriage of justice)
- Kapila v. AT & T Wireless Servs., Inc., 973 So.2d 600 (Fla. 3d DCA 2008) (cannot determine prevailing party while causes of action remain)
- Burnstein v. 5838 Condo., Inc., 430 So.2d 572 (Fla. 3d DCA 1983) (no prevailing party for fees until litigation ends)
- Combs v. State, 436 So.2d 93 (Fla. 1983) (standards for certiorari review referencing miscarriage of justice)
- Wekiva Springs Reserve Homeowners v. Binns, 61 So.3d 1190 (Fla. 5th DCA 2011) (second-tier certiorari relief only for clear legal violations causing miscarriage of justice)
- United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) (limitations on certiorari relief)