Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Salame v. 1st Priority Restoration, Inc.

Florida Court of Appeals, Third District

May 24, 2017

Diya Salame, Petitioner,
v.
1st Priority Restoration, Inc., Respondent.

         Not final until disposition of timely filed motion for rehearing.

         On 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, Judges.

          Jay M. Levy, P.A., and Jay M. Levy, for petitioner.

          Perry & Neblett, P.A., and David Avellar Neblett and John Wynn, for respondent.

          Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.

          ROTHENBERG, J.

         Diya 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.

         BACKGROUND

         This 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.

         Salame 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.

         Once in 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.

         ANALYSIS

         Although 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 (Fla. 1983)).

         As a 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.