final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County Lower Tribunal No. 14-435, Appellate
Division, Bertila Soto, Rodney Smith, and Monica Gordo,
Levy, P.A., and Jay M. Levy, for petitioner.
& Neblett, P.A., and David Avellar Neblett and John Wynn,
SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
Salame ("Salame") petitions this Court to grant
second-tier certiorari relief and quash the circuit court
appellate division's ("appellate division") per
curiam affirmance of the county court's order awarding
attorney's fees to 1st Priority Restoration, Inc.
("1st Priority"). Because we do not find any
miscarriage of justice, we deny the petition.
dispute first arose in 2007, when 1st Priority provided
Salame with water extraction services following a flood that
damaged Salame's property. Salame signed a work
authorization contract ("the contract"), which
provides for attorney's fees in the event that 1st
Priority prevails in a collection lawsuit. The contract also
contains an interest provision, which provides that in the
event of nonpayment, Salame will be responsible for service
charges in the amount of 1.5% per month or the highest amount
allowed by law.
ultimately failed to pay the invoice and claimed, among other
things, that one of the rugs that 1st Priority cleaned and
returned pursuant to the contract had been damaged by 1st
Priority in the process. 1st Priority subsequently filed its
complaint in circuit court against Salame for breach of
contract, quantum meruit, civil theft, and check fraud.
Salame answered the complaint and alleged, inter
alia, an affirmative defense that any claim or judgment
that 1st Priority obtains against Salame should be set-off by
the loss of and damage to Salame's property for which 1st
Priority is responsible. Ultimately, 1st Priority moved for
and obtained an order granting summary judgment in its favor
as to the breach of contract claim, but the circuit court
reserved ruling on the issues of damages and the amount of
attorney's fees owed in connection with the breach of
contract. Salame subsequently moved for and obtained an order
granting summary judgment in his favor on 1st Priority's
remaining claims because the claims were all barred by the
economic loss rule. In the same order, the circuit court
transferred the case to county court because the remaining
claims did not meet the circuit court's jurisdictional
threshold of $15, 000.
county court, 1st Priority moved for the entry of a final
judgment and to determine attorney's fees. After a
lengthy special set hearing on 1st Priority's motion, the
county court entered an order: (1) granting final judgment
for 1st Priority; (2) finding that 1st Priority "is the
prevailing party on all significant issues in this litigation
and is considered the prevailing party for attorney's
fees and costs and is entitled to reasonable attorney's
fees and costs" from Salame pursuant to the contract;
and (3) determining the amount that Salame owes 1st Priority
in attorney's fees and costs. Salame appealed this order
to the appellate division, arguing, in part, that the county
court erred by determining which party was the prevailing
party in the litigation prior to adjudicating Salame's
entitlement to a set-off. The appellate division issued a per
curiam affirmance of the county court's order.
Thereafter, Salame filed the instant petition for second-tier
certiorari review of the appellate division's affirmance.
this litigious conflict has been ongoing for the better part
of a decade, the case is before this Court on a second-tier
certiorari petition. Thus, this court's review is very
limited. See Haines City Cmty. Dev. v. Heggs, 658
So.2d 523, 530 (Fla. 1995) (stating that the district
court's decision on a petition for certiorari seeking
review of the circuit court's appellate decision is
limited to whether the circuit court "departed from the
essential requirements of the law"); City of Ctr.
Hill v. McBryde, 952 So.2d 599, 601 (Fla. 5th DCA 2007)
("A ruling constitutes a departure from the essential
requirements of law when it amounts to a violation of a
clearly established principle of law resulting in a
miscarriage of justice.") (internal quotation omitted).
Specifically, the limited issue in this petition for
second-tier certiorari review is whether the trial court
violated "a clearly established principle of law
resulting in a miscarriage of justice" by finding that
1st Priority is the prevailing party on all substantial
issues in the litigation while Salame's affirmative
defense of set-off is still pending. See Custer Med. Ctr.
v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.
2010) (quoting Combs v. State, 436 So.2d 93, 96
general rule, a trial court cannot determine the prevailing
party in the litigation without first resolving all of the
substantial pending issues in the litigation. Kapila v.
AT & T Wireless Servs., Inc., 973 So.2d 600, 603
(Fla. 3d DCA 2008) (holding that "[b]ecause stated
causes of action remain in the instant lawsuit, it is
impossible to determine the 'substantially
prevailing' party until such time as all pending counts
are resolved"); Burnstein v. 5838 Condo., Inc.,
430 So.2d 572, 572 (Fla. 3d DCA 1983) ("There can be no
prevailing party for the purpose of awarding attorney's
fees until there is an end to the litigation as by judgment