IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
SEMINOLE COUNTY, FLORIDA,
Petitioner,
v. Case No. 5D22-2883 LT Case No. 2022-CA-1729
APM CONSTRUCTION CORPORATION,
Respondent.
________________________________/
Opinion filed May 19, 2023
Petition for Certiorari Review of Order from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.
Michael C. Sasso, David F. Tegeler, and Christian Bonta, of Sasso & Sasso, P.A., Winter Park, for Petitioner.
Rosemary Hanna Hayes, Carly Marie Newman, and Paula Marie Bird, of Hayes & Newman, PL, Orlando, for Respondent.
LAMBERT, C.J. Petitioner, Seminole County, Florida (“Seminole County”), seeks
certiorari review of the trial court’s order denying its motion to dismiss the
complaint filed against it by Respondent, APM Construction Corporation
(“APM”). Seminole County asserts that APM filed suit before exhausting the
presuit administrative remedies required under the parties’ contract and that
the trial court’s denial order allowing the litigation to proceed prior to the
exhaustion of these remedies is a departure from the essential requirements
of the law causing it irreparable harm. For the following reasons, we grant
the petition.
The parties entered into a written contract for the construction of the
Seminole County Fire Station Number 11. Prior to the project’s completion,
Seminole County terminated the contract for cause. Not long thereafter,
APM filed suit alleging causes of action for breach of contract (count one);
prompt payment under the Local Government Prompt Payment Act (count
two); violation of Florida’s Sunshine Law (count three); and violation of
Florida’s Public Records Act (count four). 1
Seminole County moved to dismiss the complaint arguing that, under
the contract documents, which consist of the contract itself, the General
1 Seminole County is not seeking relief regarding the denial of its motion to dismiss counts three and four.
2 Conditions, and the Seminole County Administrative Code, APM was
required to first exhaust the administrative dispute resolution procedures
prior to filing suit. Seminole County points to section 18 of the contract, titled
Dispute Resolution, that provides, in pertinent part:
(a) In the event of a dispute related to any performance or payment obligation arising under this Agreement, the parties shall exhaust COUNTY administrative dispute resolution procedures prior to filing a lawsuit or otherwise pursuing legal remedies. . . .
(b) In any lawsuit or legal proceeding arising under this Agreement, [APM] hereby waives any claim or defense based on facts or evidentiary materials that were not presented for consideration in COUNTY administrative dispute resolution procedures set forth in subsection (a) above of which [APM] had knowledge and failed to present during COUNTY administrative dispute resolution procedures.
APM does not dispute that it filed suit without first pursuing or
exhausting the presuit administrative remedies under the contract.2 Its
position below and here is that the alternate dispute resolution provisions of
the parties’ contract were intended to resolve disputes that arose during
construction, not after Seminole County’s unilateral termination of the
contract.
The nature of the administrative dispute resolution procedures under 2
the County’s Administrative Code are not critical to our resolution.
3 The trial court denied Seminole County’s motion to dismiss by
unelaborated order without a hearing. The County timely filed its instant
petition.
To obtain a writ of certiorari, a petitioner, such as Seminole County
here, must show that the nonfinal order entered is “(1) a departure from the
essential requirements of the law, (2) resulting in material injury for the
remainder of the case (3) that cannot be corrected on postjudgment appeal.”
Golub v. Golub, 325 So. 3d 164, 170 (Fla. 5th DCA 2021) (quoting Williams
v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). These “second and third prongs
are sometimes collectively referred to as the ‘irreparable harm’ element, and
they are jurisdictional.” Id. (citing Fla. Dep’t of Agric. & Consumer Servs. v.
Mahon, 293 So. 3d 1091, 1095 (Fla. 5th DCA 2020)).
We first address whether Seminole County has shown the requisite
irreparable harm. Typically, certiorari relief is not available for the denial of
a motion to dismiss. Cuneo v. Conseco Servs., LLC, 899 So. 2d 1139, 1140
(Fla. 3d DCA 2005). This rule, though, is not without exceptions. Pertinent
here, certiorari jurisdiction is properly exercised when a trial court permits a
party to litigate when there is a contractual or legal obligation to first proceed
administratively. Univ. of Cent. Fla. Bd. Of Trs. v. Turkiewicz, 21 So. 3d 141,
144–45 (Fla. 5th DCA 2009); Metro Dade Cnty. v. Recchi Am., Inc., 734 So.
4 2d 1123, 1125 (Fla. 3d DCA 1999). The rationale for an appellate court
exercising its certiorari jurisdiction in these circumstances is that any error
committed by the trial court in not requiring a party to exhaust presuit
administrative remedies cannot be rectified post-judgment since one of the
purposes of the presuit administrative remedy is to avoid the filing of the
lawsuit in the first instance. Cf. Turkiewicz, 21 So. 3d at 145 (finding
irreparable harm because the statutory requirement of presuit notice and
screening cannot be meaningfully enforced post-judgment where the
purpose of presuit screening is to avoid the filing of the lawsuit).
Applying this reasoning, we find that irreparable harm has been shown
and certiorari jurisdiction properly lies. This leaves the remaining question—
whether the trial court’s order denying Seminole County’s motion to dismiss
constituted a departure from the essential requirements of the law. Our
standard of review is de novo. Cf. Serchay v. State Farm Fla. Ins., 25 So.
3d 652, 654 (Fla. 4th DCA 2010) (applying the de novo standard of review
to trial court’s order granting a motion to dismiss for the plaintiff’s failure to
exhaust his administrative remedies).
We conclude that the trial court’s order constitutes such a departure.
Our ruling is supported by the Third District Court’s opinion in Recchi. There,
Dade County moved to dismiss the plaintiff/contractor’s complaint for breach
5 of the parties’ construction contract because the contractor had not
exhausted the administrative remedies required under the contract before
filing suit. 734 So. 2d at 1124. The trial court denied the county’s motion to
dismiss, and Dade County sought certiorari relief. Id.
The Third District Court granted the writ of certiorari. Id. The court
observed that the contractor signed the construction contract knowing that it
contained required presuit dispute resolution procedures and that it was not
at liberty to thereafter proceed in circuit court without first exhausting the
administrative remedy. Id. at 1125.
APM argues that Recchi is distinguishable because in that case, Dade
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
SEMINOLE COUNTY, FLORIDA,
Petitioner,
v. Case No. 5D22-2883 LT Case No. 2022-CA-1729
APM CONSTRUCTION CORPORATION,
Respondent.
________________________________/
Opinion filed May 19, 2023
Petition for Certiorari Review of Order from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.
Michael C. Sasso, David F. Tegeler, and Christian Bonta, of Sasso & Sasso, P.A., Winter Park, for Petitioner.
Rosemary Hanna Hayes, Carly Marie Newman, and Paula Marie Bird, of Hayes & Newman, PL, Orlando, for Respondent.
LAMBERT, C.J. Petitioner, Seminole County, Florida (“Seminole County”), seeks
certiorari review of the trial court’s order denying its motion to dismiss the
complaint filed against it by Respondent, APM Construction Corporation
(“APM”). Seminole County asserts that APM filed suit before exhausting the
presuit administrative remedies required under the parties’ contract and that
the trial court’s denial order allowing the litigation to proceed prior to the
exhaustion of these remedies is a departure from the essential requirements
of the law causing it irreparable harm. For the following reasons, we grant
the petition.
The parties entered into a written contract for the construction of the
Seminole County Fire Station Number 11. Prior to the project’s completion,
Seminole County terminated the contract for cause. Not long thereafter,
APM filed suit alleging causes of action for breach of contract (count one);
prompt payment under the Local Government Prompt Payment Act (count
two); violation of Florida’s Sunshine Law (count three); and violation of
Florida’s Public Records Act (count four). 1
Seminole County moved to dismiss the complaint arguing that, under
the contract documents, which consist of the contract itself, the General
1 Seminole County is not seeking relief regarding the denial of its motion to dismiss counts three and four.
2 Conditions, and the Seminole County Administrative Code, APM was
required to first exhaust the administrative dispute resolution procedures
prior to filing suit. Seminole County points to section 18 of the contract, titled
Dispute Resolution, that provides, in pertinent part:
(a) In the event of a dispute related to any performance or payment obligation arising under this Agreement, the parties shall exhaust COUNTY administrative dispute resolution procedures prior to filing a lawsuit or otherwise pursuing legal remedies. . . .
(b) In any lawsuit or legal proceeding arising under this Agreement, [APM] hereby waives any claim or defense based on facts or evidentiary materials that were not presented for consideration in COUNTY administrative dispute resolution procedures set forth in subsection (a) above of which [APM] had knowledge and failed to present during COUNTY administrative dispute resolution procedures.
APM does not dispute that it filed suit without first pursuing or
exhausting the presuit administrative remedies under the contract.2 Its
position below and here is that the alternate dispute resolution provisions of
the parties’ contract were intended to resolve disputes that arose during
construction, not after Seminole County’s unilateral termination of the
contract.
The nature of the administrative dispute resolution procedures under 2
the County’s Administrative Code are not critical to our resolution.
3 The trial court denied Seminole County’s motion to dismiss by
unelaborated order without a hearing. The County timely filed its instant
petition.
To obtain a writ of certiorari, a petitioner, such as Seminole County
here, must show that the nonfinal order entered is “(1) a departure from the
essential requirements of the law, (2) resulting in material injury for the
remainder of the case (3) that cannot be corrected on postjudgment appeal.”
Golub v. Golub, 325 So. 3d 164, 170 (Fla. 5th DCA 2021) (quoting Williams
v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). These “second and third prongs
are sometimes collectively referred to as the ‘irreparable harm’ element, and
they are jurisdictional.” Id. (citing Fla. Dep’t of Agric. & Consumer Servs. v.
Mahon, 293 So. 3d 1091, 1095 (Fla. 5th DCA 2020)).
We first address whether Seminole County has shown the requisite
irreparable harm. Typically, certiorari relief is not available for the denial of
a motion to dismiss. Cuneo v. Conseco Servs., LLC, 899 So. 2d 1139, 1140
(Fla. 3d DCA 2005). This rule, though, is not without exceptions. Pertinent
here, certiorari jurisdiction is properly exercised when a trial court permits a
party to litigate when there is a contractual or legal obligation to first proceed
administratively. Univ. of Cent. Fla. Bd. Of Trs. v. Turkiewicz, 21 So. 3d 141,
144–45 (Fla. 5th DCA 2009); Metro Dade Cnty. v. Recchi Am., Inc., 734 So.
4 2d 1123, 1125 (Fla. 3d DCA 1999). The rationale for an appellate court
exercising its certiorari jurisdiction in these circumstances is that any error
committed by the trial court in not requiring a party to exhaust presuit
administrative remedies cannot be rectified post-judgment since one of the
purposes of the presuit administrative remedy is to avoid the filing of the
lawsuit in the first instance. Cf. Turkiewicz, 21 So. 3d at 145 (finding
irreparable harm because the statutory requirement of presuit notice and
screening cannot be meaningfully enforced post-judgment where the
purpose of presuit screening is to avoid the filing of the lawsuit).
Applying this reasoning, we find that irreparable harm has been shown
and certiorari jurisdiction properly lies. This leaves the remaining question—
whether the trial court’s order denying Seminole County’s motion to dismiss
constituted a departure from the essential requirements of the law. Our
standard of review is de novo. Cf. Serchay v. State Farm Fla. Ins., 25 So.
3d 652, 654 (Fla. 4th DCA 2010) (applying the de novo standard of review
to trial court’s order granting a motion to dismiss for the plaintiff’s failure to
exhaust his administrative remedies).
We conclude that the trial court’s order constitutes such a departure.
Our ruling is supported by the Third District Court’s opinion in Recchi. There,
Dade County moved to dismiss the plaintiff/contractor’s complaint for breach
5 of the parties’ construction contract because the contractor had not
exhausted the administrative remedies required under the contract before
filing suit. 734 So. 2d at 1124. The trial court denied the county’s motion to
dismiss, and Dade County sought certiorari relief. Id.
The Third District Court granted the writ of certiorari. Id. The court
observed that the contractor signed the construction contract knowing that it
contained required presuit dispute resolution procedures and that it was not
at liberty to thereafter proceed in circuit court without first exhausting the
administrative remedy. Id. at 1125.
APM argues that Recchi is distinguishable because in that case, Dade
County had not terminated the contract prior to plaintiff filing suit while here,
Seminole County terminated the contract. APM asserts that, under these
circumstances, Seminole County cannot now attempt to enforce a contract
with presuit administrative remedy requirements that it had terminated. For
the following reasons, we are not persuaded.
First, the parties’ contract specifically provides that where APM’s
services have been terminated by Seminole County, the termination “shall
not affect any rights that Seminole County may have against [APM] then
existing or which may thereafter accrue.” Second, nothing in the contract
shows that the parties intended to expressly exclude post-termination
6 disputes such as the one brought by APM from the scope of its presuit
administrative dispute resolution provisions. See Silverpop Sys., Inc. v.
Leading Mkt. Techs., Inc., 641 F. App’x 849, 857 (11th Cir. 2016) (“While
contractual obligations may expire upon the termination of a contract,
provisions that are structural (e.g., relating to remedies and the resolution of
disputes) may survive that termination.”); see also Fla. Woman Care LLC v.
Nguyen, 329 So. 3d 146, 151 (Fla. 4th DCA 2021) (“Generally, dispute-
related provisions, such as forum selection clauses, are enforceable beyond
the expiration of the contract if they are otherwise applicable to the disputed
issue and the parties have not agreed otherwise.” (quoting U.S. Smoke &
Fire Curtain, LLC v. Bradley Lomas Electrolok, Ltd., 612 F. App’x 671, 672–
73 (4th Cir. 2015))); Auchter Co. v. Zagloul, 949 So. 2d 1189, 1194 (Fla. 1st
DCA 2007) (holding that “[a]rbitration provisions are to be construed to
require arbitration of disputes arising after the cancellation of the underlying
contract unless such disputes are specifically excluded from arbitration,” and
therefore reasoning that where “post-termination disputes are not expressly
excluded from the scope of the dispute resolution provisions of the contract,
[the court] must construe them as intended to be included”). We therefore
conclude and hold that the presuit administrative remedy provisions of the
contract were intended to and did survive its purported termination.
7 In summary, APM signed a contract in which it agreed that: (1) disputes
regarding contract performance shall require the exhaustion of the
administrative dispute resolution procedures prior to the filing of a lawsuit;
and (2) the termination of APM’s services under the contract by Seminole
County shall not affect any rights Seminole County may have against APM.
Furthermore, the contract contained no language that expressly excluded
post-termination disputes—such as the claims being asserted in counts one
and two of APM’s complaint—from the scope of the presuit administrative
dispute resolution process. Lastly, we discern no present basis in the record
to conclude that the required presuit administrative dispute resolution
procedures will be futile. See State Dep’t of Envtl. Prot. v. PZ Constr. Co.,
633 So. 2d 76, 79 (Fla. 3d DCA 1994) (“A court should not infer that an
administrative remedy is not available in the absence of a showing that the
party seeking relief has pursued the administrative remedy without
success.”).
We therefore grant Seminole County’s petition for writ of certiorari,
quash the order denying its motion to dismiss, and remand for further
proceedings consistent with this opinion.
PETITION GRANTED; ORDER QUASHED.
MAKAR and EDWARDS, JJ., concur.