Florida Wellness & Rehabilitation Center v. Mark J. Feldman, P.A. , 262 So. 3d 234 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1575
Lower Tribunal No. 18-54
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Florida Wellness & Rehabilitation Center, Inc. a/a/o Maria Gomez,
Petitioner,
vs.
Mark J. Feldman, P.A.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Oscar Rodriguez-Fonts, Nushin G. Sayfie, and Alan Fine, Judges.
Landau & Associates, P.A., and Todd Landau (Hallandale Beach), for
petitioner.
Mark J. Feldman, P.A., and Mark J. Feldman, for respondent.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
ROTHENBERG, C.J.
The petitioner, Florida Wellness & Rehabilitation Center a/a/o Maria Gomez
(“Florida Wellness”), seeks second-tier certiorari review of an order entered by the
Appellate Division of the Miami-Dade Circuit Court (“the circuit court”)
dismissing Florida Wellness’s appeal of a final order entered by the Miami-Dade
County Court (“the county court”). We grant the petition and quash the order of
dismissal.
I. Facts and Procedural History
Florida Wellness retained Mark J. Feldman, P.A. (“Feldman”) to represent it
in a dispute seeking to recover PIP benefits. Prior to the resolution of the PIP
action filed in the county court, Florida Wellness discharged Feldman, and
thereafter, Feldman filed a notice of charging lien and retaining lien.
Following Florida Wellness’s resolution of the PIP action for $15,000,
Feldman filed an amended motion seeking to impose and/or to enforce the lien
(“motion to enforce the lien”). Thereafter, the county court conducted two
hearings relating to Feldman’s motion to enforce the lien.
Following the first hearing, at which a court reporter was present, the county
court entered a detailed order granting Feldman’s motion to enforce the lien. In its
order, the county court found that Feldman had perfected its charging lien and is
entitled to an award of reasonable attorney’s fees and costs, jointly and severally
against Florida Wellness and the PIP carrier.
Although the county court acknowledged that the circuit court, sitting in its
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appellate capacity, had previously issued an opinion holding that a discharged
attorney is limited by the settlement proceeds for satisfaction of the charging lien,
the county court found that the case referenced in the prior opinion was factually
and legally distinguishable from the instant case because, as stipulated by all
counsel at the hearing, “none of the parties or their counsel of record ever
contacted or included Mark J. Feldman, Esq. for the purpose of discussing the
reasonable attorney fees and costs to be paid to Mark J. Feldman, P.A., prior to
concluding the settlement in this matter.” The order further provides: “The Court
recognizes that parties may settle the compensatory amounts related to their
lawsuit without including the discharged attorney who has filed a charging lien.
However, parties and their attorneys who do not properly negotiate the charging
lien with the discharged attorney do so at their own peril.” (citation omitted).
Thus, the county court held that Feldman’s recovery of reasonable attorney’s fees
and costs for the charging lien was not limited by the settlement proceeds.
Thereafter, the county court conducted a second hearing to address the
award of reasonable attorney’s fees and costs to Feldman.1 Following the hearing,
the county court entered a final order awarding attorney’s fees and costs to
1 There was a court reporter present at the second hearing. The transcript of that
hearing was filed after the circuit court granted Feldman’s motion to dismiss the
appeal, but prior to the circuit court’s denial of Florida Wellness’s motion for
rehearing. The transcript of the hearing reflects that the court reporter was not
present for the entire hearing, but the transcript includes the testimony of two
witnesses, including the testimony of Mark J. Feldman.
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Feldman that exceeded the settlement amount of $15,000.
On February 19, 2018, Florida Wellness appealed to the circuit court the
final order entered by the county court and paid the filing fee and the initial deposit
for the preparation of the appellate record. On April 6, 2018, the clerk of the
circuit and county court (“the Clerk’s office”) sent an “Invoice” in the amount of
$216 to Florida Wellness’s counsel for the preparation of the completed record,
which provided: “FAILURE TO PAY THIS FEE BY APRIL 23, 2018 SHALL
RESULT IN THE DISMISSAL OF THE CASE.”2 Florida Wellness’s counsel
did not pay the invoice by the April 23rd deadline imposed by the Clerk’s office
and there was no further communication or order sent to Florida Wellness’s
counsel regarding the invoice.
On April 30, 2018, Florida Wellness’s counsel contacted Feldman’s counsel
to inform him that he would be filing a motion for extension of time to file the
initial brief that was due that day. Feldman’s counsel indicated that he would
object to the motion for extension of time and also informed Florida Wellness’s
counsel of the outstanding invoice issued by the Clerk’s office.3
Florida Wellness filed its motion for extension of time, noting Feldman’s
2 In reality, the invoice should have indicated that the failure to timely pay the
invoice may result in the dismissal of the case.
3 Florida Wellness’s counsel claims he did not learn about the invoice sent by the
Clerk’s office prior to contacting Feldman’s counsel due to a “backlog in the mail
department.”
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counsel’s objection. In response, Feldman filed an objection to Florida Wellness’s
motion, asserting, in part, that Florida Wellness had not filed the transcripts of the
hearings that led to the entry of the final order, and without the transcripts, the
appeal could not proceed, and therefore, Florida’s Wellness’s request for an
extension of time to file the initial brief was “ill-founded.”
A few minutes after Florida Wellness filed its motion for extension of time,
Feldman filed a motion to dismiss the appeal based on two grounds: (1) Florida
Wellness’s failure to pay the $216 invoice issued by the Clerk’s office, and (2)
Florida Wellness’s failure to provide an adequate record for appellate review, and
specifically, the transcripts of the hearings.
On May 1, 2018, Florida Wellness mailed a check to the Clerk’s office for
the payment of the outstanding $216 invoice. On that same day, the circuit court
granted Florida Wellness’s motion, extending the due date for the filing of the
initial brief to June 29, 2018.
On May 17, 2018, despite Florida Wellness’s payment of the invoice, the
circuit court entered an unelaborated order granting Feldman’s motion to dismiss.
The circuit court denied Florida Wellness’s verified motion for rehearing, and this
second-tier petition for writ of certiorari followed.
II. Analysis
“On a petition for writ of certiorari filed from a decision of the circuit court
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rendered in its appellate capacity, this court must determine whether the ‘circuit
court afforded procedural due process and whether it applied the correct law.’”
Affirmative Ins. Co. v. Gomez, 14 So. 3d 1244, 1246 (Fla. 4th DCA 2009)
(quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)). Second-tier
certiorari is “reserved for cases in which there has been a violation of a clearly-
established principle of law resulting in a miscarriage of justice.” United Auto.
Ins. Co. v. Cty. Line Chiropractic Ctr., 8 So. 3d 1258, 1259 (Fla. 4th DCA 2009).
In its motion to dismiss, Feldman argued that the dismissal of the appeal was
warranted based on two grounds: (1) Florida Wellness’s failure to pay the $216
invoice issued by the Clerk’s office; and (2) Florida Wellness’s failure to ensure
that a complete record, including the transcripts of the hearings, was prepared and
transmitted. Because the circuit court’s dismissal order was unelaborated, we
address both arguments.
In addressing Florida Wellness’s petition, we are guided by the following
well-settled principles. First, Florida’s public policy favors deciding controversies
on their merits. See Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So. 3d
395, 397 (Fla. 3d DCA 2009); Gillespie v. City of Destin, 946 So. 2d 1195, 1199
(Fla. 1st DCA 2006). Second, dismissal is an extreme sanction that is reserved for
only the most flagrant violations of procedural rules. See Nicaragua Trader, 19 So.
3d at 397; Lindsey v. King, 894 So. 2d 1058, 1059 (Fla. 1st DCA 2005).
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A. Failure to Timely Pay the $216 Invoice Issued by the Clerk’s Office
In the instant case, Florida Wellness’s failure to timely pay the invoice
issued by the Clerk’s office for the preparation of the appellate record did not
warrant the imposition of the most severe sanction—dismissal—thereby depriving
Florida Wellness of having the controversy decided on its merits. See I Creatives,
Inc. v. Premier Printing Sols., Inc., 163 So. 3d 606, 608 (Fla. 3d DCA 2015)
(granting petition for writ of certiorari and quashing dismissal order, finding that
“[m]ere noncompliance with a pre-failure communication by the clerk of the court
does not ipso facto reach the level of disrespect” warranting the sanction of
dismissal).
Florida Wellness did not intentionally and flagrantly disregard an order
issued by the circuit court. Rather, it negligently failed to timely pay the invoice
issued by the Clerk’s office. Following Florida Wellness’s failure to timely pay the
invoice, it did not receive any further notification or communication from the
circuit court stating that the appeal would be dismissed. Further, upon learning of
the invoice, Florida Wellness immediately mailed a check to the Clerk’s office. In
addition, prior to the circuit court’s dismissal the appeal, Florida Wellness paid
the $216 invoice. Under the circumstances, if the circuit court dismissed the
appeal based on Florida Wellness’s failure to timely pay the invoice, we conclude
that there has been a violation of a clearly-established principle of law resulting in
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a miscarriage of justice.
B. Failure to Include the Transcripts in the Appellate Record
Under the circumstances of this case, Florida Wellness’s failure to file the
transcripts of the hearing did not warrant the imposition of the most extreme
sanction—dismissal. Although the sanction of dismissal is permitted for violating
a procedural rule, as “[d]ismissal is an extreme sanction . . . , it is reserved for the
most flagrant violations of the appellate rules.” Gomez, 14 So. 3d at 1246 (quoting
Irvin v. Williams, 736 So. 2d 705, 706 (Fla. 1st DCA 1999). Prior to dismissing
Florida Wellness’s appeal, the circuit court did not issue an order directing Florida
Wellness to file the omitted parts of the record, namely the transcripts of the two
hearings, or threaten Florida Wellness with dismissal if the transcripts were not
filed. “Florida Rule of Appellate Procedure 9.200(f)(2) . . . requires an appellate
court to allow the appellant an opportunity to supplement an incomplete record
before deciding the case based on the insufficiency of the record.” Starks v.
Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1982). Here, no such opportunity was
given.
Further, in opposing Florida Wellness’s motion for extension of time to file
the initial brief, Feldman argued, among other things, that Florida Wellness had not
filed the transcripts of the hearings, and therefore, Florida Wellness’s request for
an extension of time was “ill-founded.” The circuit court granted Florida
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Wellness’s motion for extension of time, thereby rejecting Feldman’s argument.
Despite knowing that the transcripts had not been filed, the circuit court did not
issue an order instructing Florida Wellness to file the transcripts or warn Florida
Wellness that the failure to do so would result in the dismissal of its appeal.
Accordingly, under the circumstances of this case, assuming that the circuit court
dismissed the appeal based on Florida Wellness’s failure to transmit the transcripts,4
we conclude there has been a violation of a clearly-established principle of law
resulting in a miscarriage of justice.
III. Conclusion
Based on the above analysis, we grant the petition for writ of certiorari,
quash the dismissal order, and remand for further proceedings.
Petition granted; order quashed; remanded for further proceedings.
ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED
WITHIN FIVE DAYS THEREAFTER.
4 Based on the circuit court’s granting of Florida Wellness’s motion for extension
of time to file the initial brief, thereby rejecting Feldman’s argument that the
motion was “ill-founded” because the transcripts had not been filed, it appears that
the dismissal of the appeal was most likely based on Florida Wellness’s failure to
pay the $216 invoice, not the lack of the transcripts. Further, although the lack of a
transcript is usually fatal to an appellant, see Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150 (Fla. 1979), an appellate court may still review and
reverse an order on appeal if the error appears on the face of the order. As Florida
Wellness had not yet filed its initial brief, it is not clear whether it would have
argued that the transcripts were not necessary to resolve the appellate issues.
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