NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
PROGRESSIVE EXPRESS INSURANCE ) COMPANY, ) ) Petitioner, ) ) v. ) Case No. 2D17-4479 ) FRY ENTERPRISES, INC., d/b/a ) CORNERSTONE MOBILE GLASS, ) as assignee of Mike O'Connor, ) ) Respondent. ) )
Opinion filed October 31, 2018.
Petition for Writ of Certiorari to the Circuit Court for the Thirteenth Judicial Circuit for Hillsborough County; sitting in its appellate capacity.
Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and Timothy A. Patrick of Patrick Law Group, P.A., Tampa, for Respondent.
VILLANTI, Judge.
In this second-tier certiorari proceeding, Progressive Express Insurance
Company seeks a writ to quash the denial of its petition for writ of certiorari to the circuit
court, which had the effect of leaving in place a county court order that denied Progressive's motion to stay and compel appraisal in an action brought against it by Fry
Enterprises, Inc., as the assignee of Progressive's insured. Because the circuit court
denied Progressive's certiorari petition in violation of Progressive's procedural due
process rights, we grant the petition on this sole basis, quash the circuit court's ruling,
and remand for further proceedings.
The facts here are essentially undisputed. Progressive insured Mike
O'Connor's vehicle, and the policy included comprehensive coverage for damage to the
vehicle. The vehicle sustained damage to its windshield, and O'Connor contacted Fry
Enterprises for replacement. Neither O'Connor nor Fry Enterprises contacted
Progressive before the windshield was replaced. Instead, Fry Enterprises replaced the
windshield and then simply mailed an invoice to Progressive.
When Progressive received the invoice, it paid what it considered to be
the "reasonable" charge for a windshield replacement on O'Connor's vehicle, which was
approximately $150 less than Fry Enterprises' invoice. It also mailed a letter to both
O'Connor and Fry Enterprises stating that it was paying the reasonable cost and that if
either O'Connor or Fry Enterprises disputed the amount, Progressive was invoking the
appraisal clause in its policy. Progressive also identified the appraiser it wanted to use.
Rather than contacting Progressive or identifying an appraiser after
receiving the letter and partial payment, Fry Enterprises immediately sued Progressive
for breach of contract. After Progressive was served with the complaint, it first filed a
motion to dismiss because Fry Enterprises had named the incorrect corporate
defendant. Progressive subsequently filed a motion to stay discovery and compel
appraisal. Fry Enterprises filed a response contending that Progressive did not properly
-2- invoke the appraisal clause before it partially paid the invoice, that its identified
appraiser was not impartial as required by the policy, and that appraisal should be
denied under the "prohibitive cost doctrine." Importantly, Fry Enterprises did not raise
any other arguments or issues in opposition to Progressive's motion.
At the hearing on its motion to dismiss, Progressive acknowledged that, in
other cases, plaintiffs had raised issues relating to whether the amount owed for a
windshield replacement was a coverage issue not subject to appraisal and whether the
appraisal provision of the policy violated the zero deductible statute, section 627.7288,
Florida Statutes. But Fry Enterprises did not argue those issues at the hearing, and the
county court's sole ruling was that Progressive's postpayment letter to O'Connor and
Fry Enterprises did not clearly and timely invoke the appraisal clause under the policy.
No other arguments were made to or ruled upon by the county court when it denied
Progressive's motion to dismiss.
Progressive then timely filed a petition for certiorari with the circuit court.
In its petition, Progressive argued that its appraisal clause was valid and that it had
been properly and timely invoked. Progressive also argued that appraisal was proper
because the dispute was solely over the amount of the loss and not over coverage.
Progressive did not address any other issues in its petition because no other issues had
actually been raised in or ruled upon by the county court.
The circuit court issued an order to show cause on December 12, 2016,
requiring a response to the petition from Fry Enterprises within thirty days. On
January 26, 2017—fifteen days late—Fry Enterprises filed its response. That response
raised the same issues raised in the county court, i.e., that the dispute was not
-3- appraisable, that Progressive did not timely invoke the appraisal clause, and that
appraisal should be barred by the prohibitive cost doctrine. On January 31, 2017,
Progressive filed its timely reply, which addressed only these issues.
At that point, briefing should have been closed. However, on February 23,
2017, Fry Enterprises filed a second, unauthorized "response" to Progressive's petition.
In that second, unauthorized response, Fry Enterprises argued for the first time that the
limit of liability provision of Progressive's policy was ambiguous and therefore the
dispute was over coverage rather than amount. Fry Enterprises contended that this
ambiguity precluded enforcement of the appraisal provision. Progressive moved to
strike this second, unauthorized response on March 2, 2017. The circuit court did not
rule on this motion.
Then, on May 17, 2017, Fry Enterprises filed a notice of supplemental
authority that attached a county court order in a different Progressive case that denied a
motion to stay and compel appraisal on a wholly different basis, i.e., that the appraisal
provision violated section 627.7288, the zero deductible statute, when applied to claims
for windshield replacement. Progressive timely moved to strike this supplemental
authority on May 18, 2017, on the ground that it was unrelated to any of the issues
raised by the parties in this case.
Despite these two pending motions to strike—one seeking to strike Fry
Enterprises' improper second response and the other seeking to strike the irrelevant
supplemental authority—the circuit court denied Progressive's petition without
explanation. Progressive raised the issue of its pending motions to strike in a motion for
rehearing; however, the circuit court denied that motion, stating only that counsel for
-4- Progressive was "well-versed in the issues and is or should be aware of the reasons for
the Court's decision." This second-tier certiorari petition followed.
As an initial matter, this court's scope of review on second-tier certiorari is
quite limited. When certiorari is invoked to review a decision of the circuit court sitting in
its appellate capacity, "[t]he inquiry is limited to whether the circuit court afforded
procedural due process and whether the circuit court applied the correct law." Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). As to the procedural due
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
PROGRESSIVE EXPRESS INSURANCE ) COMPANY, ) ) Petitioner, ) ) v. ) Case No. 2D17-4479 ) FRY ENTERPRISES, INC., d/b/a ) CORNERSTONE MOBILE GLASS, ) as assignee of Mike O'Connor, ) ) Respondent. ) )
Opinion filed October 31, 2018.
Petition for Writ of Certiorari to the Circuit Court for the Thirteenth Judicial Circuit for Hillsborough County; sitting in its appellate capacity.
Alexandra Valdes of Cole, Scott & Kissane, P.A., Miami, for Petitioner.
Kristin A. Norse and Stuart C. Markman of Kynes, Markman & Felman, P.A., Tampa; David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and Timothy A. Patrick of Patrick Law Group, P.A., Tampa, for Respondent.
VILLANTI, Judge.
In this second-tier certiorari proceeding, Progressive Express Insurance
Company seeks a writ to quash the denial of its petition for writ of certiorari to the circuit
court, which had the effect of leaving in place a county court order that denied Progressive's motion to stay and compel appraisal in an action brought against it by Fry
Enterprises, Inc., as the assignee of Progressive's insured. Because the circuit court
denied Progressive's certiorari petition in violation of Progressive's procedural due
process rights, we grant the petition on this sole basis, quash the circuit court's ruling,
and remand for further proceedings.
The facts here are essentially undisputed. Progressive insured Mike
O'Connor's vehicle, and the policy included comprehensive coverage for damage to the
vehicle. The vehicle sustained damage to its windshield, and O'Connor contacted Fry
Enterprises for replacement. Neither O'Connor nor Fry Enterprises contacted
Progressive before the windshield was replaced. Instead, Fry Enterprises replaced the
windshield and then simply mailed an invoice to Progressive.
When Progressive received the invoice, it paid what it considered to be
the "reasonable" charge for a windshield replacement on O'Connor's vehicle, which was
approximately $150 less than Fry Enterprises' invoice. It also mailed a letter to both
O'Connor and Fry Enterprises stating that it was paying the reasonable cost and that if
either O'Connor or Fry Enterprises disputed the amount, Progressive was invoking the
appraisal clause in its policy. Progressive also identified the appraiser it wanted to use.
Rather than contacting Progressive or identifying an appraiser after
receiving the letter and partial payment, Fry Enterprises immediately sued Progressive
for breach of contract. After Progressive was served with the complaint, it first filed a
motion to dismiss because Fry Enterprises had named the incorrect corporate
defendant. Progressive subsequently filed a motion to stay discovery and compel
appraisal. Fry Enterprises filed a response contending that Progressive did not properly
-2- invoke the appraisal clause before it partially paid the invoice, that its identified
appraiser was not impartial as required by the policy, and that appraisal should be
denied under the "prohibitive cost doctrine." Importantly, Fry Enterprises did not raise
any other arguments or issues in opposition to Progressive's motion.
At the hearing on its motion to dismiss, Progressive acknowledged that, in
other cases, plaintiffs had raised issues relating to whether the amount owed for a
windshield replacement was a coverage issue not subject to appraisal and whether the
appraisal provision of the policy violated the zero deductible statute, section 627.7288,
Florida Statutes. But Fry Enterprises did not argue those issues at the hearing, and the
county court's sole ruling was that Progressive's postpayment letter to O'Connor and
Fry Enterprises did not clearly and timely invoke the appraisal clause under the policy.
No other arguments were made to or ruled upon by the county court when it denied
Progressive's motion to dismiss.
Progressive then timely filed a petition for certiorari with the circuit court.
In its petition, Progressive argued that its appraisal clause was valid and that it had
been properly and timely invoked. Progressive also argued that appraisal was proper
because the dispute was solely over the amount of the loss and not over coverage.
Progressive did not address any other issues in its petition because no other issues had
actually been raised in or ruled upon by the county court.
The circuit court issued an order to show cause on December 12, 2016,
requiring a response to the petition from Fry Enterprises within thirty days. On
January 26, 2017—fifteen days late—Fry Enterprises filed its response. That response
raised the same issues raised in the county court, i.e., that the dispute was not
-3- appraisable, that Progressive did not timely invoke the appraisal clause, and that
appraisal should be barred by the prohibitive cost doctrine. On January 31, 2017,
Progressive filed its timely reply, which addressed only these issues.
At that point, briefing should have been closed. However, on February 23,
2017, Fry Enterprises filed a second, unauthorized "response" to Progressive's petition.
In that second, unauthorized response, Fry Enterprises argued for the first time that the
limit of liability provision of Progressive's policy was ambiguous and therefore the
dispute was over coverage rather than amount. Fry Enterprises contended that this
ambiguity precluded enforcement of the appraisal provision. Progressive moved to
strike this second, unauthorized response on March 2, 2017. The circuit court did not
rule on this motion.
Then, on May 17, 2017, Fry Enterprises filed a notice of supplemental
authority that attached a county court order in a different Progressive case that denied a
motion to stay and compel appraisal on a wholly different basis, i.e., that the appraisal
provision violated section 627.7288, the zero deductible statute, when applied to claims
for windshield replacement. Progressive timely moved to strike this supplemental
authority on May 18, 2017, on the ground that it was unrelated to any of the issues
raised by the parties in this case.
Despite these two pending motions to strike—one seeking to strike Fry
Enterprises' improper second response and the other seeking to strike the irrelevant
supplemental authority—the circuit court denied Progressive's petition without
explanation. Progressive raised the issue of its pending motions to strike in a motion for
rehearing; however, the circuit court denied that motion, stating only that counsel for
-4- Progressive was "well-versed in the issues and is or should be aware of the reasons for
the Court's decision." This second-tier certiorari petition followed.
As an initial matter, this court's scope of review on second-tier certiorari is
quite limited. When certiorari is invoked to review a decision of the circuit court sitting in
its appellate capacity, "[t]he inquiry is limited to whether the circuit court afforded
procedural due process and whether the circuit court applied the correct law." Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). As to the procedural due
process inquiry, "[p]rocedural due process requires both fair notice and a real
opportunity to be heard . . . 'at a meaningful time and in a meaningful manner.' " Keys
Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948
(Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). "In other words,
'[t]o qualify under due process standards, the opportunity to be heard must be
meaningful, full and fair, and not merely colorable or illusive.' " Dep't of Highway Safety
& Motor Vehicles v. Hofer, 5 So. 3d 766, 771 (Fla. 2d DCA 2009) (alteration in original)
(quoting Rucker v. City of Ocala, 684 So. 2d 836, 841 (Fla. 1st DCA 1996)). Thus,
depending on the nature of the pending appellate motions, a circuit court's failure to rule
on those motions before addressing the merits of the appeal may constitute a violation
of procedural due process if the failure to rule means that a litigant was deprived of a full
and fair opportunity to be heard.
For example, in Kirrie v. Indian River County Code Enforcement Board,
104 So. 3d 1177, 1178 (Fla. 4th DCA 2012), the Kirries filed a brief in the circuit court
raising substantive issues relating to the county court's judgment. In its answer brief,
the Board raised a preservation issue that the Kirries had not anticipated. Id. The
-5- Kirries filed a motion to supplement their appendix with additional materials that would
address this preservation issue; however, the circuit court affirmed the county court's
ruling without addressing the motion to supplement. Id. at 1178-79. On second-tier
certiorari, the Fourth District quashed the circuit court's ruling, noting that the court's
failure to address the pending motion to supplement deprived the Kirries of their
procedural due process right to be heard in a meaningful manner. Id. at 1179; see also
Cook v. City of Winter Haven Police Dep't, 837 So. 2d 492 (Fla. 2d DCA 2003)
(quashing the dismissal of the Cooks' appeal entered while their motion for leave to
amend their appendix was pending because the circuit court's failure to rule on that
motion before deciding the case violated their due process rights); DSA Marine Sales &
Serv., Inc. v. County of Manatee, 661 So. 2d 907, 909 (Fla. 2d DCA 1995) (granting
second-tier certiorari because "the circuit court's summary denial of the petition without
allowing DSA a reasonable time to assemble a complete record deprived DSA of
procedural due process"). As these cases demonstrate, a circuit court's failure to rule
on a party's pending motion directed to the briefing and record before the court prior to
the court ruling on the merits of a petition constitutes a denial of procedural due
process.
Like the petitioners in Kirrie, Progressive in this case raised arguments in
its petition for writ of certiorari relating solely to the issues that had been addressed
before and by the county court. Fry Enterprises initially filed a response that addressed
only those issues, and Progressive filed a pertinent reply. However, Fry Enterprises
then filed a second, unauthorized response that raised additional issues, and it filed a
-6- notice of supplemental authority that raised yet more issues.1 Progressive moved to
strike the second, unauthorized response brief or, in the alternative, for leave to file a
reply to the unauthorized response. Progressive also moved to strike the irrelevant
supplemental authority. But the circuit court denied the certiorari petition without ruling
on either of Progressive's motions. Because the circuit court did not explain the basis
for its ruling, there is no way to know whether the circuit court based its decision on
issues that were improperly raised for the first time in Fry Enterprises' second,
unauthorized response or on supplemental authority that was irrelevant to the case.
Therefore, on these facts, the circuit court's ruling necessarily denied Progressive
procedural due process.
In its brief, Progressive seems to invite this court to address the merits of
its petition for the first time, contending that if the circuit court had applied the correct
law, it would have been required to find that the county court's ruling was in error.
However, this court's role on second-tier certiorari review is limited to quashing the
order on review and remanding for the circuit court to apply the correct law. See, e.g.,
Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 844 (Fla. 2001) (noting that the
district court's role on second-tier certiorari is limited to a review of the circuit court's
decision rather than a de novo review of the underlying county court or agency decision
and holding that "[t]he appellate court has no power in exercising its jurisdiction in
1The additional response and supplemental authority, if allowed, would effectively permit Fry Enterprises to amend its pleadings to raise new and different issues without Fry Enterprises ever having filed a motion for leave to amend and without the county court having ruled on such a motion. Moreover, because the new and different issues were never presented to the county court, the circuit court would be ruling on those issues in the first instance, which is an improper function for a reviewing court.
-7- certiorari to enter a judgment on the merits of the controversy under consideration nor to
direct the [lower tribunal] to enter any particular order or judgment" (quoting Tamiami
Trail Tours v. R.R. Comm'n, 174 So. 451, 454 (Fla. 1937))). Therefore, this court has
no authority to reach the merits of the underlying dispute between Progressive and Fry
Enterprises.
Finally, Fry Enterprises argues that this court does not have second-tier
certiorari jurisdiction to entertain Progressive's petition, but this argument is incorrect.
This court has second-tier certiorari jurisdiction to review decisions of the circuit court
sitting in its appellate capacity. Therefore, this argument does not provide a basis for
denial of certiorari here.
In sum, we grant Progressive's petition for writ of certiorari, quash the
order of the circuit court, and remand for the circuit court to rule on Progressive's motion
to strike Fry Enterprises' second, unauthorized response and its motion to strike Fry
Enterprises' supplemental authority. Once the circuit court rules on those motions, it
must then consider the merits of Progressive's petition based on the issues properly
before it.
Certiorari granted, decision quashed, and case remanded with
instructions.
SILBERMAN and MORRIS, JJ., Concur.
-8-