Am. Prime Title Servs., LLC v. Zhi Wang

Decision Date03 February 2021
Docket NumberNo. 3D20-1153,3D20-1153
Citation317 So.3d 1183
CourtFlorida District Court of Appeals
Parties AMERICAN PRIME TITLE SERVICES, LLC, Petitioner, v. Zhi WANG, et al., Respondents.

Waugh Law, P.A., and Morgan L. Fayocavitz, and Christian W. Waugh (Orlando), for petitioner.

Payton & Associates, LLC, and Harry A. Payton, and Susan M. Mohorcic, for respondent Zhi Wang.



Petitioner, American Prime Title Services, LLC, seeks certiorari review of a lower court order denying a motion to compel the disclosure of any settlement agreements executed between respondent, Zhi Wang, and others in the proceedings below. In the instant petition, American Prime asserts the trial court effectively eviscerated its affirmative defense of setoff by denying it access to the settlement amounts prior to a finding of liability. At this juncture, because the record fails to demonstrate the requisite harm irremediable on plenary appeal to support relief in certiorari, we dismiss.


In 2017, Wang contracted to sell his Miami condominium unit to Sadie Bofill and Orlando Rodriguez. In the days leading up to the closing, Wang's attorney and the title company, Capital Title Group, Inc., were unwittingly deceived by an electronic impersonation attack. As a result, the funds advanced for the purchase price of the condominium were wired to a fraudulent account and never recovered.

Wang filed a lawsuit, grounded in negligence, against American Prime, acting as settlement agent in the transaction, Capital Title, and his attorney and her law firm, and, for breach of contract, against the buyers, seeking to recoup the intercepted monies. In his complaint, Wang initially alleged joint and several liability against American Prime and Capital Title, but, upon American Prime's motion, the trial court struck this theory of liability, determining, instead, that fault would be apportioned among the parties.

Wang settled his claims against his attorney, her law firm, and Capital Title and then amended the complaint to add a claim for attorney's fees, leaving only the buyers and American Prime as active defendants. Thereafter, American Prime sought production of the settlement amounts. Wang objected, asserting the amounts were confidential and irrelevant. American Prime subsequently answered the amended complaint, alleging a litany of affirmative defenses, including setoff, and formally moved to compel the settlement agreements, prior to a finding of liability.

Following a duly noticed hearing, the lower court denied the motion, without prejudice, finding, "[o]nce liability is determined as to [American Prime] the court will review the matter upon motion and notice of hearing." This petition ensued.


"Common law certiorari lies at the appellate margin, functioning as a safety net for matters that otherwise would fall through the gaps in Florida's appellate system." Matthew J. Conigliaro, The Continuing Story of Certiorari, 83 Fla. B.J. 38, 38 (2009) (citation omitted). "The judicial policy in favor of limited certiorari review is based on the notion that piecemeal review of nonfinal trial court orders will impede the orderly administration of justice and serve only to delay and harass." Jaye v. Royal Saxon, Inc., 720 So. 2d 214, 215 (Fla. 1998) (citing William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 222 (1977)).

Accordingly, "[c]ertiorari is an extraordinary remedy that is available only in limited circumstances." Charles v. State, 193 So. 3d 31, 32 (Fla. 3d DCA 2016). It "is warranted when a nonfinal order: (1) cannot be remedied on postjudgment appeal, (2) results in material injury for the remainder of the case, and (3) departs from the essential requirements of law." A.H. v. Dep't of Child. & Fams., 277 So. 3d 704, 706-07 (Fla. 3d DCA 2019) (citing Fernandez-Andrew v. Fla. Peninsula Ins. Co., 208 So. 3d 835, 837 (Fla. 3d DCA 2017) ). "The first two prongs of the analysis are jurisdictional." Dade Truss Co. Inc. v. Beaty, 271 So. 3d 59, 62 (Fla. 3d DCA 2019) (citation omitted). "If the jurisdictional prongs of the standard three-part test are not fulfilled, then the petition should be dismissed" as certiorari does not lie. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995). This well-established principle compels our decision today.


Because the scope, sequence, and timing of discovery are conducted under the able supervision of the lower tribunal, a great deal must, of necessity, be left to its sound discretion. Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 193 (Fla. 2003). Further, any abuse of discretion in refusing to compel discovery is ordinarily rectifiable upon plenary appeal. Ruiz v. Steiner, 599 So. 2d 196, 197 (Fla. 3d DCA 1992) ; see also Palmer v. WDI Sys., Inc., 588 So. 2d 1087, 1088 (Fla. 5th DCA 1991). Consequently, "certiorari relief is an ‘extremely rare’ remedy that will be provided in ‘very few’ " such cases. Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 455 (Fla. 2012) (citation omitted); see Power Plant Ent., LLC v. Trump Hotels & Casino Resorts Dev. Co., LLC, 958 So. 2d 565, 567 (Fla. 4th DCA 2007) ; Neeley v. CW Roberts Contracting Inc., 948 So. 2d 844, 844 (Fla. 1st DCA 2007) ; Duran v. MFM Grp., Inc., 841 So. 2d 500, 501 (Fla. 3d DCA 2003).

One exceedingly narrow exception to the general rule exists where "the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim." Westerbeke Corp. v. Atherton, 224 So. 3d 816, 821 (Fla. 2d DCA 2017) (quoting Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009) ). Under these particular circumstances, certiorari relief is appropriate because the harm "is not remediable on appeal [since] there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings." Giacalone, 8 So. 3d at 1234-35 (citations omitted).

In the instant petition, American Prime contends this exception applies, because the denial of discovery of the settlement amounts wholly eviscerates its affirmative defense of setoff. Under Florida law, setoff is statutorily circumscribed. See § 46.015(2), Fla. Stat. (2020) ; see also § 768.041(2), Fla. Stat. (2020) ; § 768.31(5)(a), Fla. Stat. (2020). The setoff statutes are designed to "prevent an award of double damages." Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 739 (Fla. 5th DCA 2000). Thus, their application "presupposes the existence of multiple defendants jointly and severally liable for the same damages." McCalla v. E.C. Kenyon Constr. Co., Inc., 183 So. 3d 1192, 1197 (Fla. 1st DCA 2016) (quoting D'Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) ).

Against this background, we turn our attention to the procedural aspects of the relevant setoff statutes. Section 768.041(2), Florida Statutes, provides, in pertinent part:

At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

Similarly, section 46.015(2), Florida Statutes, contains the following provision:

At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment.

Significantly, both statutes concurrently prohibit "the admission at trial of any evidence of settlement or dismissal of a defendant." Holmes v. Area Glass, Inc., 117 So. 3d 492, 494 (Fla. 1st DCA 2013). Our high court has determined this unambiguous prohibition "admits no exceptions, and violation of [it] ... is reversible error." Id. at 494 (citing Saleeby v. Rocky Elson Constr., Inc., 3 So. 3d 1078, 1080 (Fla. 2009) ).

In reconciling these two seemingly competing provisions, trial courts defer claims of setoff predicated upon settlement as unripe until such time as liability has been found, but before judgment is rendered. See Allen v. State Farm Fla. Ins. Co., 198 So. 3d 871, 874 (Fla. 2d DCA 2016) ("[A] setoff, if any, would not come into play until the jury found State Farm liable and determined the amount of damages."); Anderson v. Vander Meiden ex rel. Duggan, 56 So. 3d 830 (Fla. 2d DCA 2011) (finding that where liability had been established settlement documents were discoverable); see also Dionese v. City of W. Palm Beach, 500 So. 2d 1347, 1348 (Fla. 1987) ("A post-trial hearing was held to determine the proper method of set-off as required by section 768.041(2), Florida Statutes."); Addison Constr. Corp. v. Vecellio, 240 So. 3d 757, 768 (Fla. 4th DCA 2018) (acknowledging setoff is part of post-judgment proceedings as "[i]f courts were required to delve into the scope of undifferentiated settlement agreements for the purposes of making a setoff determination, then post-judgment proceedings would turn into a second trial"); Nationsbank, N.A. v. KPMG Peat Marwick LLP, 813 So. 2d 964, 965 (Fla. 4th DCA 2002) (noting the "court adjusted the jury's award with setoffs" after trial); Anderson v. Ewing, 768 So. 2d 1161, 1166 (Fla. 4th DCA 2000) (stating appellant should have requested a setoff in his post-trial motion); Mikes v. City of Hollywood, 687 So. 2d 1381, 1383 (Fla. 4th DCA 1997) (describing the issue of...

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2 books & journal articles
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 No. 3, May 2022
    • May 1, 2022
    ...5348900 (Fla. 3d DCA 2021). (16) Strachan, 82 So. 3d at 1054. (17) Similar is the 2-1 decision in American Prime Title Services v. Wang, 317 So. 3d 1183 (Fla. 3d DCA 2021). The dissent would have found irreparable harm but denied the (18) Esman v. Bd. of Regents of State of Fla., 425 So. 2d......
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 No. 2, March 2022
    • March 1, 2022
    ...Writ of Certiorari in Florida, 29 FLA. L. REV. 207, 224 & n.136 (1977) (on file with author). (2) Am. Prime Title Servs. v. Wang, 317 So. 3d 1183, 1186 (Fla. 3d DCA 2021) (quoting Westerbeke Corp. v. Atherton, 224 So. 3d 816, 821 (Fla. 2d DCA 2017) (quoting Giacalone v. Helen Ellis Mem'......

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