22 Fla. L. Weekly Supp. 54a
Online Reference: FLWSUPP 2111MANSInsurance — Personal injury protection — Appeals — Standing — Omission of “P.A.” from style of petition for writ of certiorari seeking review of order in case filed by medical provider as professional association is scrivener’s error that does not deprive provider of standing — Appeals — Certiorari — Order dismissing with prejudice provider’s claim for declaratory relief in multi-count complaint containing interrelated claims is non-final, non-appealable order reviewable only pursuant to appellate court’s certiorari jurisdiction — Provider has not established that dismissal of declaratory action claim or potentially improper award of attorney’s fees creates irreparable harm necessary for writ of certiorari where both are reviewable on plenary appeal
GLENN V. QUINTANA, D.C., P.A. a/a/o OMAR MANSO, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-176 AP. July 3, 2014. Counsel: Marlene S. Reiss, for Petitioner. Nancy W. Gregoire, Carlos Carmona, Jr., for Respondent.
(Before VENZER, HIRSCH, and SANCHEZ-LLORENS, JJ.)
(PER CURIAM.) On or about February 1, 2009, Mr. Omar Manso, insured by Respondent State Farm Mutual Automobile Insurance Company, was involved in an automobile accident. Petitioner, Glenn V. Quintana, D.C., P.A., provided Mr. Manso with medical treatment from February 10, 2009 through March 3, 2009. Petitioner submitted claims to Respondent for the medical treatment, and a dispute arose regarding the proper amount of reimbursement. Petitioner filed a two-count Complaint against Respondent in January 2012. Count I of the Complaint sought a declaratory judgment regarding the appropriate method of reimbursement under the insurance policy. Count II of the Complaint alleged a breach of contract for failing to reimburse 80% of reasonable charges.
Respondent filed a Motion to Dismiss in July 2012, arguing that that the declaratory judgment claim sought the same relief as the breach of contract claim, and that Petitioner was not in doubt as to its rights under the policy, and thus there was no need for a declaratory judgment. The lower court held a hearing on the Motion to Dismiss on April 1, 2013, and entered an order dismissing the declaratory judgment count with prejudice because Petitioner “ha[d] an adequate remedy for breach of contract.” Petitioner filed the Petition for Writ of Certiorari on May 2, 2013.Standing
As a first preliminary issue, Respondent asserts that this court lacks jurisdiction to consider the Petition for Writ of Certiorari because Petitioner lacks standing to seek review of the lower court’s order. Respondent claims that Dr. Quintana is listed in his personal capacity as the Petitioner in the style of the Petition, rather than the professional association Glenn V. Quintana, D.C., P.A., who is the Plaintiff in the underlying case. Respondent argues that Dr. Quintana is a nonparty to the proceedings and has no standing to seek review of an order entered by the lower court. Petitioner asserts that any error in omitting “P.A.” in the style of the Petition was a minor scrivener’s error that does not affect Petitioner’s standing in this case. This Court agrees with Petitioner that the omission of “P.A.” from the style represents a minor scrivener’s error, and finds that Petitioner has standing to seek review of the lower court’s order.Nature of Review
As a second preliminary issue, Petitioner requests this Court to consider its request for appellate review as either a petition for writ of certiorari, or as a final appeal of the lower court’s order. This Court finds that the lower court’s order is not reviewable on appeal at this juncture. Several Florida District Courts of Appeal have ruled that an order dismissing counts of a multi-count complaint, even with prejudice, is a nonfinal, non-appealable order. See, e.g., Florida Lifestyle Realty, Inc. v. Goodwin, 917 So. 2d 1060 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D200a] (holding that the court lacked jurisdiction to consider an appeal of an order dismissing with prejudice one count of a six-count complaint where the claims were interdependent); Santana v. Florida Intern. Univ., 922 So. 2d 242 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D175a] (holding that piecemeal appeals from nonfinal order dismissing with prejudice two counts of a six-count complaint was not permissible where the claims were interrelated and involved the same transaction and parties). See also Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D1012c] (“An appeal from an order dismissing a count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending, pleaded claims.”)
Petitioner’s two-count Complaint contains interrelated causes of action regarding the proper reimbursement rates for medical coverage. Based on the relevant precedent case law, the lower court’s order dismissing with prejudice Petitioner’s claim for a declaratory judgment is a nonfinal, non-appealable order. Accordingly, this Court will review the lower court order pursuant to its certiorari jurisdiction. See Fla. R. App. P. 9.030(c)(2).Certiorari Review
The standard for granting a writ of certiorari for a non-final order is: (1) the order to be reviewed must constitute a departure from the essential requirements of law; (2) the order must cause material injury through subsequent proceedings; and (3) the injury must be irreparable, i.e., one for which there will be no adequate remedy after final judgment.
Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So. 2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b] (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)).
A departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. . . A decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, does not rise to the necessary level.
Barker v. Barker, 909 So. 2d 333, 337-38 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1655a] (citing Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 525 (Fla. 1995) [20 Fla. L. Weekly S318a].
Petitioner argues that the lower court’s order departs from the essential requirements of law because it is in direct conflict with Florida Statutes § 86.111, which states in pertinent part that “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” See Fla. Stat. § 86.111. Petitioner further asserts that the lower court’s ruling creates irreparable harm in two ways: (1) that Petitioner is now precluded from obtaining a declaratory judgment as to its rights under the policy, and (2) that the lower court order has potentially exposed Petitioner to a judgment for attorney’s fees and costs pursuant to an offer of judgment from Respondent. See Fla. Stat. § 768.79.
Respondent asserts that the lower court order did not depart from the essential requirements of law because the lower court properly found that the declaratory judgment claim did not support a separate count under Chapter 86, Florida Statutes and was duplicative of Petitioner’s breach of contract claim. Respondent further argues that Petitioner’s claimed harm is not irreparable, and is hypothetical at this point of the litigation.
Upon review of these arguments, this Court chooses to focus on Petitioner’s claims of irreparable harm caused by the lower court’s order. This Court finds that Petitioner’s purported bases for harm do not establish irreparable harm necessary for a writ of certiorari. As to Petitioner’s claim that it is precluded from obtaining a declaratory judgment, Florida case law indicates that a lower court order incorrectly applying § 86.111 and dismissing a declaratory judgment claim is reviewable on plenary appeal. See, e.g., Transportation Cas. Ins. Co. v. Soil Tech Distributors, Inc., 966 So. 2d 8 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1862a] (holding that the trial court erred in dismissing a declaratory judgment count because the plaintiff had a remedy for rescission and reversed and remanded for proceedings in the declaratory judgment action).
As to Petitioner’s claim that it is now potentially exposed to attorney’s fees pursuant to Section 768.79, this Court finds that Petitioner’s potential exposure is merely hypothetical at this juncture of the litigation, as the merits of the underlying case have not been adjudicated. Furthermore, Florida case law indicates that an incorrect award of attorney’s fees is reviewable on plenary appeal. See, e.g., Nilo v. Fugate, 30 So. 3d 623, 625 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D592e] (“Entitlement to attorney’s fees under section 768.79, Florida Statutes (2006), is subject to de novo review.”) (citing Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007) [32 Fla. L. Weekly S320a]). Overall, Petitioner has failed to illustrate that either a count dismissed with prejudice or a potentially improper award of attorney’s fees pursuant to § 768.79 creates irreparable harm that cannot be remedied on plenary appeal.
THEREFORE, based on the foregoing analysis, the Petition for Writ of Certiorari is hereby DENIED. Respondent’s Motion for Appellate Attorney’s Fees is GRANTED. Petitioner’s Motion for Appellate Attorney’s Fees is DENIED. (VENZER, HIRSCH, and SANCHEZ-LLORENS, JJ., concur.)
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