Frinzi v. Tolli

391 So.3d 970

Kimberly FRINZI; Bolliger Law Group, PLLC; and Aldo Bolliger Esq., Petitioners,

v.THOMAS C. TOLLI, M.D., P.A. d/b/a Thomas Tolli, M.D., Respondent.

No. 2D2023-2008

District Court of Appeal of Florida, Second District.

June 7, 2024

Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Cynthia J. Newton, Judge.

Aldo Bolliger of Bolliger Law Group, PLLC, St. Petersburg, for Petitioners.

Brad Salter of Salter, Healy, LLC, St. Petersburg, for Respondent.

LaROSE, Judge.

Attorney Aldo Bolliger petitions for a writ of certiorari.¹ See Fla. R. App. P. 9.030(b)(2)(A). He asks us to quash the trial court’s order denying his summary judgment motion. He alleges that Dr. Thomas Tolli, his personal injury client’s treating physician, failed to join indispensable parties in a breach of contract lawsuit against Attorney Bolliger and his client, Kimberly Frinzi. The lawsuit is premised upon a contract requiring Attorney Bolliger to refrain from distributing any settlement proceeds to Ms. Frinzi until he paid Dr. Tolli’s medical bills. Because Attorney Bolliger fails to establish irreparable harm, we dismiss the petition.

Background

Attorney Bolliger represented Ms. Frinzi in a personal injury lawsuit stemming from a car accident. Ms. Frinzi did not have health insurance. She received medical treatment from many providers, including Dr. Tolli.

Ms. Frinzi and Attorney Bolliger separately executed a "Letter of Protection" (LOP) in favor of Dr. Tolli. Attorney Bolliger "agree[d] to withhold monies from settlement … in [his] client’s case in an amount sufficient to cover any unpayed [sic] balances for sen-ices rendered by [Dr. Tolli]." He also agreed to satisfy Dr. Tolli’s bill "prior to disbursing any proceeds to [Ms. Frinzi] personally."

Ms. Frinzi settled her case at mediation. Unfortunately, the settlement amount was less than her outstanding medical bills. Because of the relatively meager financial outcome, Attorney Bolliger wrote to Dr. Tolli and Ms. Frinzi’s other medical care providers proposing that "the only fair resolution is that we all take a pro rata share of the recovery based upon our outstanding balances." Attorney Bolliger presented a closing statement showing the proposed reduced pro rata share for Attorney Bolliger, Dr. Tolli, and the other medical care providers. Dr. Tolli agreed to Attorney Bolliger’s proposal. He expected to receive $21,492.66 for his medical services.

Over a year later, Attorney Bolliger filed a "Complaint for Interpleader and/or for Equitable Distribution" on behalf of Ms. Frinzi against her medical care pro- viders. Allegedly, two of Ms. Frinzi’s medical care providers did not agree to accept reduced payments. Consequently, he "file[d] this action so that the [trial court] may make a determination as to what entities are protected via [the LOP] and therefore should share in a pro-rata distribution." Count I of the complaint "request[ed] that an order of interpleader be entered, a judgment that [Ms. Frinzi]’s costs and attorneys fees be awarded to [Ms. Frinzi] out of the sum held in trust and … [Ms. Frinzi] be dismissed allowing [medical care providers] to proceed with this action." Count II of the complaint asserted a claim for equitable distribution, a "judicial determination as to the proper pro rata share distribution of the settlement funds so that [Attorney Bolliger] may distribute the remaining funds."

Several medical care providers, including Dr. Tolli, failed to respond to the complaint. Dr. Tolli reported that he "didn’t take any action because [he] had no defenses to submit because … [he] had a valid [LOP] and [he] was going to be paid for [his] service." Attorney Bolliger obtained a clerk’s default against the nonresponding medical care providers. See Fla. R. Civ. P. 1.500(a).

Attorney Bolliger then submitted correspondence and a proposed order to the trial court. He advised that the nondefaulted medical care provider parties agreed with the distribution scheme contained in the attached Order Approving Agreed Distribution.² The proposed order did not distribute any funds to Dr. Tolli. Without a hearing, the trial court entered the Order Approving Agreed Distribution. Shortly thereafter, Attorney Bolliger voluntarily dismissed the Complaint for Interpleader and/or for Equitable Distribution and issued a check to Ms. Frinzi for $60,630.24.³ The "Order Approving Agreed Distribution" was not provided to the defaulted parties. Dr. Tolli continued to treat Ms. Frinzi. He assumed that payment delays were due to court closures during the Co- vid-19 pandemic. He did, however, make multiple inquiries of Attorney Bolliger about Ms. Frinzi’s case. Dr. Tolli reported being stonewalled; Attorney Bolliger repeatedly claimed, "We’re waiting on the court." Finally, Dr. Tolli asked Ms. Frinzi about his unpaid bills. She responded that "Aldo told me everybody was paid in full." Alas, the veil was lifted.

Dr. Tolli sued Attorney Bolliger and Ms. Frinzi for breach of contract. He alleged that despite the terms of the LOP, Attorney Bolliger "disbursed all settlement funds received through the lawsuit … which were being held in his trust account, without making any payment to [Dr. Tolli]. The disbursement of settlement funds … by [Attorney Bolliger] … included paying substantial sums of money to [Ms. Frinzi] with no payment ever being made to [Dr. Tolli]."

Attorney Bolliger moved for summary judgment, alleging that Dr. Tolli failed to join indispensable parties. Specifically, he claimed that

[t]he factual basis alleged, and the issues raised in [Dr. Tolli]’s current 2022 [breach of contract] action, brought pursuant to his LOP … were previously litigated in a prior 2019 case, separate and apart from the 2016 injury action.

The 2019 case was litigated against [Dr. Tolli] and a number of other entities who had LOPs, liens or other claims on the settlement funds collected in the injury action and was brought for the express purpose of determining which medical providers (including [Dr. Tolli]) would receive what share of the PI settlement funds gathered in the 2016 case. The current plaintiff, [Dr. Tolli], was a defendant in the prior 2019 litigation and failed to appear in that prior case, which resulted in a default against [Dr. Tolli] and the Court in that case entering a Distribution Order for the same settlement funds and identical LOP that [Dr. Tolli] is now attempting to relitigate in this subsequent 2022 case.

[Dr. Tolli] brings his current 2022 action against [Attorney Bolliger and Ms. Frinzi] under an LOP that stated he was entitled to settlement funds for rendering treatment to [Ms. Frinzi] in the 2016 PI action and [Dr. Tolli] seeks a portion of the settlement funds secured in the prior action but fails to include any of the other parties that were involved in the 2019 action and that had LOPs, liens and other charges related to the 2016 injury action, or the 2019 action, where the settlement funds were distributed even though [Dr. Tolli] has been repeatedly placed on notice of this failure to include these indispensable parties.

The trial court denied the motion, observing "that the non-parties [sic] referenced in Defendants’ motion are not indispensable parties."⁴

Analysis

"The supreme court has repeatedly cautioned that certiorari review of interlocutory orders ‘is an extraordinary remedy that should be granted only in very limited circumstances.’ " Foster v. State, 326 So. 3d 1192, 1194 (Fla. 1st DCA 2021) (quoting Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047, 1052 (Fla. 2016)); see also Dep't of Revenue ex rel. T.H.W. v. D.E.B., 312 So. 3d 180, 182 (Fla. 2d DCA 2021) ("Certiorari is an original proceeding designed to provide extraordinary relief." (quoting State v. Bjorkland, 924 So. 2d 971, 975 (Fla. 2d DCA 2006))).

[1] In order "[t]o invoke the extraordinary relief of certiorari a party must ‘demonstrate that the contested order constitutes "(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." ’ " Hett v. Barron- Lunde, 290 So. 3d 565, 569 (Fla. 2d DCA 2020) (second alteration in original) (quoting Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012)).

[2, 3] "The second and third elements are jurisdictional, and this court must first analyze the jurisdictional elements before it can consider whether the lower tribunal departed from the essential requirements of law. If the petitioner fails to satisfy the jurisdictional elements, this court dismisses the petition rather than denying it." Plantz v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015) (citation omitted); see also Foster, 326 So. 3d at 1196 ("The rule of law is clear: district courts must first analyze the ‘threshold jurisdictional’ requirement of irreparable harm, and if it is not met, then the inquiry must end there.").

[4] We jump easily to the third prong. We can dispose of this original action on the ground that Attorney Bolliger’s alleged injury (the failure to join indispensable parties) can be remedied on appeal. See Kermes v. Citizens Prop. Ins. Corp., 327 So. 3d 352, 353 (Fla. 3d DCA 2021) ("[W]e dismiss for lack of jurisdiction Citizens’ petition seeking certiorari review of the trial court’s subsequent order denying its motion to dismiss for failure to join Kermes’ husband as an indispensable party."); City of Miami v. Vill. of Key Bis- cayne, 199 So. 3d 300, 302 n.2 (Fla. 3d DCA 2016) ("This Court has declined to grant certiorari relief of an order denying a motion to dismiss for failure to join an indispensable party."); Fresh Del Monte Produce, N.V. v. Chiquita Int’l, Ltd., 664 So. 2d 263, 264 (Fla. 3d DCA 1995) ("[W]e decline to grant certiorari on the order denying petitioner’s motion to dismiss for failure to join an indispensable party and the order denying motion for abatement or stay of proceedings."); cf. ...