AMERICAN FRANCHISE GROUP LLC

v.

PHILLIPE GASTONE

Third District Court of Appeal

State of Florida

Opinion filed April 7, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1889 Lower Tribunal No. 19-2350

________________

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

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 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.