Third District Court of Appeal
State of Florida
Opinion filed April 7, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1889
Lower Tribunal No. 19-2350
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American Franchise Group LLC and Juan Gervas,
Petitioners,
vs.
Philippe Gastone,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County,
Veronica Diaz, Judge.
Wasson & Associates, Chartered, and Roy D. Wasson and Annabel C.
Majewski; Michael Lascelle, P.A., and Jeffrey S. Greenhaus, for petitioners.
Espino Law, P.L., and Monica Espino, for respondent.
Before SCALES, HENDON, and MILLER, JJ.
HENDON, J.
The defendants below, American Franchise Group LLC (“American
Franchise”) and Juan Gervas (“Gervas”) (collectively, “Petitioners”), petition
this Court for a writ of certiorari, seeking to quash the trial court’s partial
summary judgment entered in favor of the plaintiff below, Philippe Gastone
(“Gastone”), as to Count I of his multi-count operative complaint based on
admissions deemed admitted, which order contains language authorizing
immediate execution—“for which sums let execution issue forthwith.”1 For
the reasons that follow, we grant the petition and quash the portion of the
partial summary judgment authorizing immediate execution.
I. Factual and Procedural Background
Gastone filed suit against American Franchise and Gervas stemming
from Gastone’s employment. In the operative complaint, Gastone asserted
the following counts: Count I—unpaid wages against American Franchise;
Count II—minimum wage violations under section 448.110 against American
Franchise and Gervas; Count III—minimum wage violations under the Fair
Labor Standards Act against American Franchise and Gervas; Count IV—
breach of contract against American Franchise and Gervas; Count V—unjust
enrichment against American Franchise and Gervas.
Gastone propounded requests for admissions on both American
1
The judgment is titled, “Final Summary Judgment.” However, as it only
adjudicates Count I of the operative complaint, the judgment is a partial
summary judgment.
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Franchise and Gervas. Thereafter, American Franchise and Gervas filed
separate answers and affirmative defenses, denying material allegations.
Gastone filed a motion to deem admissions as admitted based on
American Franchise’s and Gervas’ failure to respond to the request for
admissions within the thirty-day deadline set forth in Florida Rule of Civil
Procedure 1.370. 2 Thereafter, American Franchise and Gervas filed a
“Notice of Serving Responses to Plaintiff’s First Request for Admissions,
Response to Motion to Deem Admissions Admitted, and Motion for Relief
from Technical Admissions.” In his response, Gervas denied each request
for admission, stating that he was a stranger to the alleged transaction, and
American Franchise denied all but one request with explanations.
A few weeks later, the trial court conducted a hearing on Gastone’s
motion to deem admissions admitted. Although the Petitioners had already
filed their separate responses to the request for admissions, the trial court
entered an order granting Gastone’s motion to deem admission admitted and
found that there was no evidence on the record that contradicts the technical
2
In relevant part, rule 1.370 provides: “The matter is admitted unless the
party to whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter within 30
days after service of the request or such shorter or longer time as the court
may allow[.]”
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admissions. Thereafter, the trial court entered an order clarifying that it was
denying the Petitioners’ motion for relief from technical admissions.
Gastone then filed a verified motion for summary judgment, seeking a
judgment as to Count I of the operative complaint. Gastone asserted that all
matters have been admitted and there are no issues of material fact. In
opposition, the Petitioners asserted that despite the trial court’s ruling
granting the motion to deem admissions admitted, the record contains
factual opposition constituting material disputed facts, and therefore, the
motion for summary judgment must be denied.
Following a hearing, the trial court granted the motion for summary
judgment, finding that the Petitioners failed to present any evidence
contradicting the technical admissions. Thereafter, the trial court entered a
partial summary judgment against the Petitioners, joint and severally,
awarding monetary damages to Gastone, “for which sums let execution
issue forthwith.” The trial court denied the Petitioners’ motion for rehearing,
and this petition for writ of certiorari followed.
The Petitioners argue that the trial court departed from the essential
requirements of law by entering the partial summary judgment as to Count I
based solely on the technical admissions where the pleadings and record
evidence allegedly contradict the technical admissions and no prejudice has
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been demonstrated. We do not reach the merits of this argument, but grant
the petition for writ of certiorari and quash the portion of the partial summary
judgment authorizing immediate execution.
II. Analysis
To obtain relief by petition for writ of certiorari, a petitioner must
“demonstrate a departure from the essential requirements of the law which
results in a material injury for which there is no adequate remedy on appeal.”
State v. Hernandez, 278 So. 3d 845, 848 (Fla. 3d DCA 2019) (quoting State
v. Styles, 962 So. 2d 1031, 1032 (Fla. 3d DCA 2007)). The requirements of
material injury for which there is no adequate remedy on appeal are
jurisdictional. Hernandez, 278 So. 3d at 848; East Ave., LLC v. Insignia
Bank, 136 So. 3d 659, 664 (Fla. 2d DCA 2014).
In People’s Trust Insurance Co. v. Gonzalez, 46 Fla. L. Weekly D287
(Fla. 3d DCA Feb. 3, 2021), this Court treated People’s Trust notice of appeal
as a petition for writ of certiorari. The order under review granted partial
summary judgment in favor of the insured, Enrique Gonzalez, ordering
People’s Trust to pay Gonzalez monetary damages within ten days of the
date of the order. As in the instant case, the order entered in People’s Trust
left other factually related claims unresolved.
In People’s Trust, this Court granted the petition for writ of certiorari
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and quashed the portion of the partial summary judgment that requires
payment prior to the entry of a final judgment. In doing so, this Court stated:
Courts have consistently found that an order resolving only part
of a civil lawsuit by requiring a party to make an interim payment
while leaving intertwined factual matters unresolved presents the
type of irreparable harm and departure from the essential
requirements of the law remediable by issuance of a writ of
certiorari. See, e.g., Team Richco, LLC v. Rapid Sec. Sols., LLC,
290 So. 3d 629, 630 (Fla. 2d DCA 2020) (issuing writ and
quashing partial judgment that results in “irreparable injury where
it authorizes execution prior to entry of a final, appealable
order”); East Ave., LLC v. Insignia Bank, 136 So. 3d 659, 665
(Fla. 2d DCA 2014) (same).
Accordingly, we grant the petition for writ of certiorari and quash the portion
of the partial summary judgment authorizing immediate execution.
Petition granted; portion of the partial summary judgment authorizing
immediate execution quashed.
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