Petition for Writ of Certiorari — MRI Associates of Tampa, Inc., Petitioner v. State Farm Mutual Automobile Insurance Company

Supreme Court briefMar 7, 2022

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MRI ASSOCIATES OF TAMPA, INC.,

Petitioner,

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------DAVID M. CALDEVILLA

Counsel of Record

DE LA PARTE & GILBERT, P.A.

Post Office Box 2350

Tampa, FL 33601-2350

Telephone 813-229-2775

dcaldevilla@dgfirm.com

serviceclerk@dgfirm.com

Counsel for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Did the Florida Supreme Court violate the

Petitioner’s constitutionally guaranteed due process

rights by reversing the trial court’s summary

judgment based on an unpreserved and waived issue,

and a determination that is unsupported by any

evidence or the parties’ stipulation of facts?

PARTIES TO THE PROCEEDING

The caption of the case on the cover page identifies

all parties.

CORPORATE DISCLOSURE STATEMENT

The Petitioner’s parent company is Ava Industries,

Inc. No publicly traded company owns 10% or more of

the Petitioner’s stock.

RELATED CASES

State Farm Mutual Automobile Insurance Company v.

MRI Associates of Tampa, Inc., No. 14-CA-008634,

Division D, Circuit Court of the Thirteenth Judicial

Circuit in and for Hillsborough County, Florida.

Judgment entered September 6, 2016.

State Farm Mutual Automobile Insurance Company v.

MRI Associates of Tampa, Inc., No. 2D16-4036.

Judgment entered May 18, 2018.

MRI Associates of Tampa, Inc. v. State Farm Mutual

Automobile Insurance Company, No. SC18-1390.

Judgment entered December 9, 2021.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

PARTIES TO THE PROCEEDING ......................

CORPORATE DISCLOSURE STATEMENT ......

RELATED CASES ...............................................

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

PETITION FOR WRIT OF CERTIORARI ...........

OPINIONS BELOW.............................................

JURISDICTION ...................................................

CONSTITUTIONAL

PROVISIONS

AND

STATUTES INVOLVED ...................................

STATEMENT OF THE CASE..............................

Introduction regarding the Florida “PIP”

law .............................................................

State Farm amends its insurance policy.....

Trial-level proceedings .............................. 10

State Farm appeals to the Florida Second

District Court of Appeal ............................ 12

Petitioner seeks review in the Florida

Supreme Court .......................................... 14

TABLE OF CONTENTS—Continued

Page

REASONS FOR GRANTING THE PETITION .....

THE

FLORIDA

SUPREME

COURT

VIOLATED

THE

PETITIONER’S

CONSTITUTIONALLY GUARANTEED DUE

PROCESS RIGHTS BY REVERSING THE

TRIAL COURT’S SUMMARY JUDGMENT

BASED ON AN UNPRESERVED AND

WAIVED ISSUE, AND A DETERMINATION

THAT

UNSUPPORTED

BY ANY

EVIDENCE

THE

PARTIES’

STIPULATION OF FACTS .............................. 19

Introduction ............................................... 19

Due process requires fact findings to be

supported by evidence ............................... 20

The Florida Supreme Court clearly

violated due process .................................. 25

CONCLUSION..................................................... 30

APPENDIX

Supreme Court of Florida, Opinion, December 9,

2021 ........................................................................ A1

Florida District Court of Appeal, Order, July 18,

2018 ...................................................................... A18

Florida District Court of Appeal, Opinion, May

18, 2018 ................................................................ A20

Hillsborough County Circuit Court, Judgment,

September 6, 2016 ................................................ A33

TABLE OF CONTENTS—Continued

Page

Hillsborough County Circuit Court, Order,

August 18, 2016.................................................... A37

Supreme Court of Florida, Order Denying

Motion for Rehearing, January 19, 2022 ............. A41

Motion for Rehearing, Supreme Court of

Florida, December 23, 2021 ................................. A43

Motion for Rehearing, Florida District Court of

Appeal, June 4, 2018 ............................................ A78

TABLE OF AUTHORITIES

Page

CASES

Adderley v. State of Florida, 385 U.S. 39 (1966) ........22

Am. Tradition P’ship, Inc. v. Bullock, 567 U.S.

516 (2012) ................................................................31

Bainter v. League of Women Voters of Fla., 150

So.3d 1115 (Fla. 2014) ....................................... 28, 29

Baron v. Baron, 941 So.2d 1233 (Fla. 2d DCA

2006) ........................................................................21

Bearden v. Georgia, 461 U.S. 660 (1983) ....................21

California v. Green, 399 U.S. 149 (1970) ....................22

Castor v. State, 365 So.2d 701 (Fla. 1978) ..................27

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..............24

Chamberlain v. State, 881 So.2d 1087 (Fla.

2004) ........................................................................27

City of Miami v. Steckloff, 111 So.2d 446 (Fla.

1959) ........................................................................27

Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532 (1985) ................................................................20

Connecticut Nat’l Bank v. Germain, 503 U.S. 249

(1992) .......................................................................15

CSX Transp., Inc. v. Hensley, 556 U.S. 838

(2009) .......................................................................32

DCI MRI, Inc. v. Geico Indem. Co., 79 So.3d 840

(Fla. 4th DCA 2012) ..................................................4

Dober v. Worrell, 401 So.2d 1322 (Fla. 1981) ....... 26, 27

vii

TABLE OF AUTHORITIES—Continued

Page

Douglas v. Buder, 412 U.S. 430 (1973) .......................22

Duest v. Dugger, 555 So.2d 849 (Fla. 1990)................27

Florida Dept. of Financial Services v. Freeman,

921 So.2d 598 (Fla. 2006) ........................................26

Foucha v. Louisiana, 504 U.S. 71 (1992) ....................23

Geico Gen. Ins. Co. v. Virtual Imaging Services,

Inc., 141 So.3d 147 (Fla. 2013).......................... 6, 7, 9

Geico Gen. Ins. Co. v. Virtual Imaging Servs.,

Inc., 90 So.3d 321 (Fla. 3d DCA 2012) .................. 3, 4

Geico Indem. Co. v. Virtual Imaging Servs., Inc.,

79 So.3d 55 (Fla. 3d DCA 2012) ................................4

GMAC Mortg., LLC v. Choengkroy, 98 So.3d 781

(Fla. 4th DCA 2012) ............................................. 29

Goldberg v. Kelly, 397 U.S. 254 (1970) .......................20

Gregory v. City of Chicago, 394 U.S. 111 (1969) ........22

Gwinn v. Awmiller, 354 F.3d 1211 (10th Cir.

2004) ..................................................................... 22

Hammond v. State, 34 So.3d 58 (Fla. 4th DCA

2010) ........................................................................27

Hinton v. Alabama, 571 U.S. 263 (2014) ....................31

Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir.

2010) ........................................................................24

Insko v. State, 969 So.2d 992 (Fla. 2007) ...................26

Interstate Commerce Comm’n v. Louisville &

N.R. Co., 227 U.S. 88 (1913) ....................................21

viii

TABLE OF AUTHORITIES—Continued

Page

Jackson v. Virginia, 443 U.S. 307 (1979) .............. 21, 22

Kingsway Amigo Insurance Company v. Ocean

Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011) .........4

KPMG LLP v. Cocchi, 565 U.S. 18 (2011)...................31

Liton Lighting v. Platinum Television Group, Inc.,

2 So.3d 366 (Fla. 4th DCA 2008) .............................29

Lobree v. ArdenX LLC, 199 So.3d 1094 (Fla. 3d

DCA 2016) ............................................................ 29

Manatee County School Bd. v. NationsRent, Inc.,

989 So.2d 23 (Fla. 2d DCA 2008) ............................28

Marmet Health Care Ctr., Inc. v. Brown, 565 U.S.

530 (2012) ................................................................31

Massey Services, Inc. v. Sanders, 312 So.3d 209

(Fla. 5th DCA 2021) ................................................26

Matter of Maple Mortg., Inc., 81 F.3d 592 (5th

Cir. 1993) .................................................................25

Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573

(1951) .......................................................................23

MRI Associates of Tampa, Inc. v. State Farm

Mutual Insurance Company, ___ So.3d ___,

2021 WL 5832298 (Fla. Dec. 9, 2021) ................. 1, 14

Nat’l City Bank v. Nagel, 95 So.3d 458 (Fla. 4th

DCA 2012) ...............................................................29

Nibert v. State, 508 So.2d 1 (Fla. 1987) ......................26

Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17

(2012) .......................................................................31

TABLE OF AUTHORITIES—Continued

Page

Niz-Chavez v. Garland, ___ U.S. ___, 141 S.Ct.

1474 (2021) ........................................................... 18

Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272

(11th Cir. 2005)........................................................24

Piedmont & Arlington Life Ins. Co. v. Ewing, 92

U.S. 377 (1875) ........................................................23

Polyglycoat Corp. v. Hirsch Distributors, Inc., 442

So.2d 958 (Fla. 4th DCA 1983) ...............................27

Powell v. State, 120 So.3d 577 (Fla. 1st DCA

2013) ........................................................................29

Presley v. Georgia, 558 U.S. 209 (2010) ......................31

Pub. Serv. Comm’n v. FERC, 397 F.3d 1004

(D.C.Cir. 2005) .........................................................22

R.R. Comm’n of California v. Pac. Gas & Elec.

Co., 302 U.S. 388 (1938) ..........................................23

Ritz-Carlton Development Co. v. Narayan, 136

S.Ct. 799 (2016) .......................................................31

Rivers v. State, 980 So.2d 599 (Fla. 2d DCA

2008) ........................................................................27

Rucker v. Just Brakes, 75 So.3d 807 (Fla. 1st

DCA 2011) ...............................................................29

Schware v. Bd. of Bar Exam. of State of N.M.,

353 U.S. 232 (1957) .................................................22

Shuttlesworth v. City of Birmingham, 382 U.S.

87 (1965) ..................................................................22

Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985) .......22

TABLE OF AUTHORITIES—Continued

Page

State Farm Mutual Insurance Company v. MRI

Associates of Tampa, Inc., 252 So.3d 773 (Fla.

2d DCA 2018) ................................................ 1, 12, 13

Steinhorst v. State, 412 So.2d 332 (Fla. 1982) ...........27

Superintendent, Massachusetts Corr. Inst.,

Walpole v. Hill, 472 U.S. 445 (1985) ........................21

Sutherland v. Elpower Corp., 923 F.2d 1285 (8th

Cir. 1991) .............................................................. 24

Thompson v. City of Louisville, 362 U.S. 199

(1960) .......................................................................22

Thompson v. DeSantis, 301 So.3d 180 (Fla.

2020) ........................................................................28

Tillman v. State, 471 So.2d 32 (Fla. 1985) .................27

Turner v. Upton County, Tex., 967 F.2d 181 (5th

Cir. 1992) .................................................................23

UA Local 343 of the United Ass’n of Journeymen

& Apprentices v. Nor–Cal Plumbing, Inc., 48

F.3d 1465 (9th Cir. 1994) .........................................24

Vachon v. New Hampshire, 414 U.S. 478 (1974) ........22

Vorbeck v. Betancourt, 107 So.3d 1142 (Fla. 3d

DCA 2012) ...............................................................26

W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d

746 (Fla. 2d DCA 1994) ...........................................27

Williams v. Lowe’s Home Centers, Inc., 973 So.2d

1180 (Fla. 5th DCA 2008) .......................................26

TABLE OF AUTHORITIES—Continued

Page

Williams v. Primerano, 973 So.2d 645 (Fla. 4th

DCA 2008) ...............................................................29

Young v. State, 141 So.3d 161 (Fla. 2013) ..................26

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ....................................................2

U.S. Const. amend. XIV, § 1 ..........................................2

Fla. Const. Art. V, Sec. (3)(b)(4) ..................................14

STATUTES AND RULES

28 U.S.C. § 1257(a) ........................................................1

Fla. Stat. Sec. 627.736 et seq. ............................ passim

Sup. Ct. R. 16.1 ...........................................................31

OTHER AUTHORITIES

Ch. 2007-324, § 20, Laws of Fla. (2007) .......................3

Ch. 2012-197, § 10, Laws of Fla. (2012) .......................4

PETITION FOR WRIT OF CERTIORARI

The Petitioner, MRI Associates of Tampa, Inc.,

respectfully petitions for a writ of certiorari to review

the decision of the Florida Supreme Court.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Florida Supreme Court’s decision is reported

as MRI Associates of Tampa, Inc. v. State Farm Mutual

Insurance Company, ___ So.3d ___, 2021 WL 5832298

(Fla. Dec. 9, 2021), and is reproduced in the Petitioner’s

Appendix (“A”) at A1-18.

The Florida Second District Court of Appeal’s

decision is reported as State Farm Mutual Insurance

Company v. MRI Associates of Tampa, Inc., 252 So.3d

773 (Fla. 2d DCA 2018), and is reproduced at A20-32.

The decision of the Circuit Court of the Thirteenth

Judicial Circuit in and for Hillsborough County,

Florida, is unreported and is reproduced at A33-35.

---------------------------------♦---------------------------------

JURISDICTION

The Florida Supreme Court denied rehearing on

January 19, 2022. (A41). This Court has jurisdiction

under 28 U.S.C. § 1257(a).

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Fifth Amendment to the United States

Constitution provides, in part, “No person shall . . . be

deprived of life, liberty, or property, without due

process of law[.]”

Section One of the Fourteenth Amendment to the

United States Constitution provides, in part, “No State

shall . . . deprive any person of life, liberty, or property,

without due process of law[.]”

Section 627.736(5)(a)5, Florida Statutes (2012 to

present) provides, in part, “An insurer may limit

payment as authorized by this paragraph only if the

insurance policy includes a notice at the time of

issuance or renewal that the insurer may limit

payment pursuant to the schedule of charges specified

in this paragraph.”

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Introduction

“PIP” law

regarding the Florida

Since 1971, Florida drivers have been required by

Section 627.736 of the Florida Statutes to be covered

by no-fault personal injury protection (“PIP”)

insurance, which requires insurers to pay for

“reasonable” medical expenses incurred by their

insureds who sustain injuries in motor vehicle

accidents. The reasonable amount of those medical

expenses has historically been a hotly contested issue,

which state trial judges and juries had to decide in

protracted and costly litigation based on a loosely

defined fact-dependent reasonable amount standard.

That fact-dependent standard appears in the 1971

through 1997 versions of Section 627.736(5), the 1998

through 2007 versions of Section 627.736(5)(a), the

2008 through 2011 versions of Section 627.736(5)(a)1,

and the 2012 through present versions of Section

627.736(5)(a).

To reduce the amount of litigation over the

reasonable amount of medical expenses covered by PIP

insurance, the Florida Legislature amended Section

627.736 in 2008, to add a permissive alternative

methodology that PIP insurers may rely upon to limit

reimbursement of medical expenses based on a

“schedule of maximum charges.” See Ch. 2007-324, §20,

Laws of Fla. (2007). See also Geico Gen. Ins. Co. v.

Virtual Imaging Servs., Inc., 90 So.3d 321, 323 (Fla. 3d

DCA 2012) (the 2008 fee schedule amendments to the

PIP statute “sought to address the enormous costs and

inefficiencies of the law prior to amendment”).

The schedule of maximum charges methodology

was originally found in the 2008 through 2011 versions

of Section 627.736(5)(a)2-5. For some types of medical

expenses, the schedule of maximum charges refers to

certain “Medicare” fee schedules and pricing

standards. See, e.g., § 627.736(5)(a)1.f(I), Fla. Stat.

(2012) (allowing PIP insurers to pay “80 percent of . . .

200 percent of the allowable amount under . . . [t]he

participating physicians fee schedule of Medicare Part

B”). Hence, case law sometimes refers to the schedule

of maximum charges method as the “fee schedule

method” or the “Medicare fee schedule method.”

Although the schedule of maximum charges

method was adopted to reduce litigation, additional

litigation soon arose concerning the manner in which

PIP insurers could lawfully rely on that method. That

litigation migrated up to Florida’s intermediate-level

appellate courts. During May 2011 through March

2012, those intermediate appellate courts uniformly

held that the original fact-dependent method and the

new schedule of maximum charges method were two

different and alternative methods of calculating

reasonable medical expenses, and that PIP insurers

could not rely on the schedule of maximum charges

method without clearly and unambiguously electing it

in the insurance policy. See Kingsway Amigo Insurance

Company v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th

DCA 2011) (issued on May 18, 2011); Geico Indem. Co.

v. Virtual Imaging Servs., Inc., 79 So.3d 55 (Fla. 3d

DCA 2012) (“Virtual I”) (issed on February 15, 2012);

Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 90

So.3d 321 (Fla. 3d DCA 2012) (“Virtual II”) (issued on

July 3, 2012); DCI MRI, Inc. v. Geico Indem. Co., 79

So.3d 840 (Fla. 4th DCA 2012) (issued on March 12,

2012).

On May 1, 2012, the Virtual II decision was

appealed to the Florida Supreme Court. A few days

later, on May 4, 2012, the Governor of Florida approved

some amendments to Section 627.736. See Ch. 2012197, §10, Laws of Fla. (2012). (A55). As part of those

amendments, some of the subparagraphs within

Section 627.736(5) were renumbered. As a result, the

original fact-dependent standard is now found at

Section 627.736(5)(a), and the schedule of maximum

charges is now found at Section 627.736(5)(a)1.a

through f. The 2012 amendment also created a new

Section 627.736(5)(a)5, which expressly sets forth how

a PIP insurer may rely on the schedule of maximum

charges for limiting reimbursement of medical

expenses. That provision states:

5. Effective July 1, 2012, an insurer may

limit payment as authorized by this

paragraph only if the insurance policy

includes a notice at the time of issuance or

renewal that the insurer may limit payment

pursuant to the schedule of charges specified

in this paragraph. A policy form approved by

the office satisfies this requirement. If a

provider submits a charge for an amount

less than the amount allowed under

subparagraph 1., the insurer may pay the

amount of the charge submitted.

§ 627.736(5)(a)5, Fla. Stat. (2012).

Under the plain text of the first sentence of the

new Section 627.736(5)(a)5, the Florida Legislature

imposed three requirements which were not

previously stated in the statute. According to those

three requirements, PIP insurer may rely on the new

schedule of maximum charges method “only” if: (1) the

insurance policy must include “a notice,” (2) such “a

notice” must be included “at the time of issuance or

renewal,” and (3) such “a notice” must provide “that the

insurer may limit payment pursuant to the schedule of

charges[.]” This new statutory provision took effect on

July 1, 2012, while litigation was still pending over the

manner in which PIP insurers could lawfully elect to

rely on the schedule of maximum charges under the

prior version of the statute.

On July 3, 2012 (i.e., two days after the effective

date of the new Section 627.736(5)(a)5), the Florida

Supreme Court issued its decision in Geico Gen. Ins.

Co. v. Virtual Imaging Services, Inc., 141 So.3d 147

(Fla. 2013) (“Virtual III”). Based on the 2008 through

2011 versions of Section 627.736, the Court held that

“there are two different methodologies for calculating

reimbursements to satisfy the PIP statute’s reasonable

medical expenses coverage mandate,” and that PIP

insurers have “a choice in dealing with their insureds

as to whether to limit reimbursements based on the

[schedule of maximum charges] or whether to continue

to determine the reasonableness of provider changes

for necessary medical services rendered to a PIP

insured based on the factors enumerated in section

627.736(5)(a)1.” Id., 141 So.3d at 156-157 (italics in

original, underline added). To make that “choice,” the

insurer “was required to give notice to its insured by

electing the permissive . . . fee schedules in its policy

before taking advantage of the . . . fee schedule

methodology to limit reimbursements.” Id., at 150. The

Court further explained that “when the plain language

of the PIP statute affords insurers two different

mechanisms for calculating reimbursements, the

insurer must clearly and unambiguously elect the

permissive payment methodology in order to rely on

it.” Id., at 158.

In recognition of the new and different

requirements set forth in the 2012 amendments, the

Florida Supreme Court also stated, “[b]ecause . . . the

Legislature has now specifically incorporated a notice

requirement into the PIP statute, effective July 1,

2012, see § 627.736(5)(a)5., Fla. Stat. (2012), our

holding applies only to policies that were in effect from

the effective date of the 2008 amendments to the PIP

statute that first provided for the . . . fee schedule

methodology, which was January 1, 2008, through the

effective date of the 2012 amendment, which was July

1, 2012.” Virtual III, 141 So.3d at 150.

Notably, the Virtual III decision held that under

the 2008 through 2011 versions of the statute, PIP

insurers were required to “give notice . . . by electing

the permissive . . . fee schedules in its policy[.]” Id., at

150. In contrast, the new Section 627.736(5)(a)5

expressly required PIP insurers to include “a notice”

in the insurance policy, required PIP insurers to

provide such “a notice” in a particular manner and at

a particular time, and dictated the contents of such “a

notice.” Because these two notice standards are

different (i.e., “give notice” versus “include a notice”),

the Court announced that its decision in Virtual III

would not apply to insurance policies issued after the

effective date of the new notice requirement imposed

by Section 627.736(5)(a)5.

B. State Farm amends its insurance policy

Meanwhile, on February 6, 2012, the Respondent,

State Farm Mutual Automobile Insurance Company

(“State Farm”), submitted a proposed amended insurance

policy (form 9810A) to the Florida Office of Insurance

Regulation (A52, 57). Rather than making “a choice”

between the fact-dependent method “or” the schedule of

maximum charges method, that amended insurance

policy combined those two methods together to form a

single “hybrid” method by which one or more elements of

either or both methods could be used to determine the

reasonable amount of medical expenses that State Farm

would pay in PIP benefits (A5-6, 22-24, 34).

About three months later, on May 4, 2012, the

same date that the amendments to Section 627.736

were signed into law by the Governor, the Florida

Office of Insurance Regulation issued “Informational

Memorandum OIR-12-02M” to “assist insurers with

the filings necessary to implement the notice

requirement in Section 627.736(5)(a)5[.]” (A53-54). In

pertinent part, the memorandum instructed insurers

as follows:

The Office will commit to review filings

submitted for this purpose on an expedited

basis provided that the insurer has only

submitted one endorsement in the filing and

that one endorsement only contains language

to implement the notice requirement. All form

filings are subject to the standard form review

process of Section 627.410, Florida Statutes.

(A54, 59).

With respect to timing, State Farm’s proposed new

insurance policy form was submitted before the

legislation proposing to adopt Section 627.736(5)(a)5

was created, and before Informational Memorandum

OIR-12-02M was issued. (A52-54). Moreover, State

Farm’s submission was not merely “one endorsement”

that “only contain[ed] language to implement the

notice requirement” of Section 627.736(5)(a)5, but was

instead an expansive new insurance policy form. (A5253, 58-59, 72, 88-89). And, to be certain, there is no

evidence to demonstrate or suggest that State Farm

requested the Florida Office of Insurance Regulation

to approve its insurance policy form for purposes of

complying with the requirements set forth in Section

627.736(5)(a)5 that would become effective on July 1,

2012, as opposed to the “standard form review process

of Section 627.410, Florida Statutes” identified in the

above-quoted instructions (A54, 58-59, 71-72, 88-89).

Indeed, State Farm submitted the proposed insurance

policy form months before the new legislation was

drafted, before the agency memorandum was issued,

and before Virtual III was issued. Therefore, absent

clairvoyance, State Farm was not in a position to

predict the forthcoming requirements of Section

627.736(5)(a)5 or the outcome of Virtual III.

On October 5, 2012 (i.e., about three months after

the Florida Supreme Court’s decision in Virtual III was

issued), the Florida Office of Insurance Regulation

rubber-stamped the State Farm’s insurance policy

form 9810A with the word “approved.” (A57-58, 88).

The agency did not specify whether the policy form was

approved for purposes of Section 627.736(5)(a)5 or for

purposes of the “standard form review process of

Section 627.410.” (A54, 57-59, 69, 71-72).

C. Trial-level proceedings

The Petitioner is a provider of magnetic resonance

imaging (“MRI”) services (A21). During 2013, the

Petitioner provided MRIs to 19 patients who had PIP

coverage provided by State Farm. (A21-22, 44). The

Petitioner billed State Farm for those MRIs, and State

Farm paid less than the charged amounts. (A22).

When the Petitioner disputed State Farm’s

payment amounts, State Farm filed a declaratory relief

action against the Petitioner in Florida state court.

(A22, 44). The Petitioner then counterclaimed for

declaratory relief against State Farm. (A22, 44).

The parties agreed to file competing motions for

summary judgment which would be governed by

procedures set forth in the trial court’s “Stipulated and

Agreed Case Management Order.” (A34, 57). In that

order, the trial court required the parties to file a

stipulated set of “all facts and evidence on which the

parties [would] rely in support of their respective

motions for summary judgment,” and ruled that “no

party [could] rely on additional facts or evidence not

contained in or attached to the fact stipulation.” (A57).

In their stipulated set of facts and evidence, the

parties agreed that the Petitioner “does not concede

that State Farm’s Policy Form 9810A complies with

Informational Memorandum OIR-12-02M or Section

627.736(5)(a)5, Florida Statutes (2012-2015)” and

“does not concede” that the Florida Office of Insurance

Regulation’s approval of that form “has the legal effect

of constituting approval within the meaning of Section

627.736(5)(a)5, Florida Statutes (2012-2015), or that

[the agency] approved Policy Form 9810A for purposes

of Section 627.736(5)(a)5, or that State Farm otherwise

complied with Section 627.736(5)(a)5.” (A57-58). Although the parties stipulated that those particular

factual matters are disputed, there was no evidence—

and State Farm presented no legal arguments—

demonstrating compliance with any of the three

requirements imposed by the first sentence of Section

627.736(5)(a)5. (A46, 59-74, 88, 89).

The trial court ultimately granted final summary

judgment in favor of the Petitioner and against State

Farm. (A21, 33-40). The trial court’s order expressly

“adopt[ed] the stipulations of fact as the factual basis

for its ruling.” (A38). Based on the stipulated facts, the

trial court ruled that State Farm “failed to clearly and

unambiguously elect” the schedule of maximum

charges methodology in its insurance policy, and “instead

adopted an unauthorized hybrid method” comprised of

elements described in Section 627.736(5)(a)1-5,

Florida Statutes (2012-2015) and elements of the

original fact-dependent methodology described in

Section 627.736(5)(a). (A34).

D. State Farm appeals to the Florida

Second District Court of Appeal

State Farm appealed the trial court’s final

summary judgment to the Florida Second District

Court of Appeal, which is an intermediate-level state

appellate court. On May 18, 2018, the Second District

issued its appellate decision (A20-32), which is

reported as State Farm Mutual Insurance Company v.

MRI Associates of Tampa, Inc., 252 So.3d 773 (Fla. 2d

DCA 2018).

The Second District’s decision acknowledged that

State Farm’s insurance policy “tracks” both the factdependent method in the 2012 version of Section

627.736(5)(a) and schedule of maximum charges

limitations set forth in the 2012 version of Section

627.736(5)(a)1. State Farm, 252 So.3d at 775. (A24).

Nonetheless, the Second District reversed the trial

court’s judgment based on an unpreserved legal

argument that had never been raised in the trial court

or in the appeal. (A44-45, 49, 74, 80).

Instead of deciding the issues actually presented

by State Farm on appeal, the Second District sua

sponte decided that because the Florida Legislature

amended Section 627.736(5) in 2012 by renumbering

some of its subparagraphs, “there are no longer two

mutually exclusive methodologies for calculating the

reimbursement payment owed by the insurer.” (A8, 30,

44, 80). State Farm, 252 So.3d at 777-778.

In reversing, the Second District certified the

following question to the Florida Supreme Court as a

matter of great public importance, “Does the 2013 PIP

statute as amended permit an insurer to conduct a

fact-dependent calculation of reasonable charges

under section 627.736(5)(a) while allowing the insurer

to limit its payment in accordance with the schedule of

maximum charges under section 627.736(5)(a)(1)?”

(A31-32). State Farm, 252 So.3d at 778-779. Notably,

the certified question does not address whether State

Farm provided “a notice” that complied with any of the

requirements imposed by Section 627.736(5)(a)5. (A3132).

The Petitioner filed a motion for rehearing or

clarification. (A78-89). Among other things, that

motion contended that neither party had ever raised

the Legislature’s renumbering of the statute’s

subparagraphs as an issue either in the trial court or

in the appeal. (A79-80). As such, the Petitioner argued,

“State Farm did not preserve this argument for review

and so it cannot be the basis for a reversal in State

Farm’s favor.” (A80). The Petitioner’s motion also

clearly established that the renumbering of the

subparagraphs was a mere editorial change which did

not alter the meaning of the prior version of the

statute. (A80-87). The Petitioner’s motion also

explained that State Farm never presented any

evidence that it complied with Section 627.736(5)(a)5.

(A87-89).

By order dated July 18, 2018, the Second District

denied the Petitioner’s motion for rehearing or

clarification. (A18).

E. Petitioner seeks review in the Florida

Supreme Court

The Petitioner sought review in the Florida

Supreme Court, which invoked its jurisdiction under

Article V, Section (3)(b)(4) of the Florida Constitution

to decide matters of great public importance. (A1).

On December 9, 2021, the Florida Supreme Court

issued its appellate decision (A1-17), which is reported

as MRI Associates of Tampa, Inc. v. State Farm Mutual

Insurance Company, ___ So.3d ___, 2021 WL 5832298

(Fla. Dec. 9, 2021).

The decision acknowledged that the parties’

arguments to the Florida Supreme Court “center[ed]

on the analysis adopted by the district court.” (A10).

And, consistent with the Petitioner’s arguments, the

Court expressly rejected the Second District’s reasons

for reversing the trial court, stating, “we are not

persuaded that the reorganization of the statute relied

on by the Second District is a sound basis for

determining the issue presented in this case. . . .”

(A14).

Despite rejecting the Second District’s sua sponte

reasons for reversing the trial court’s judgment, the

Florida Supreme Court nonetheless proceeded to

express its own sua sponte determination “that the

text of the notice provision [of Section 627.736(5)(a)5]

that became effective in 2012 supports the result

reached by the district court.” (A14, 15).

Interestingly, the Florida Supreme Court’s

decision purports to pay homage to this Court’s

decision in Connecticut Nat’l Bank v. Germain, 503 U.S.

249, 253-254 (1992), where Justice Clarence Thomas

observed that “the ‘one, cardinal canon [of

construction] before all others’ . . . is, we ‘presume that

a legislature says in a statute what it means and

means in a statute what it says there.’ ” (A12). After

identifying that “cardinal cannon,” however, the

Florida Supreme Court proceeded to violate it.

In its decision, the Florida Supreme Court quoted,

with italics for emphasis, the plain text of Section

627.736(5)(a)5, but then proceeded to gloss over that

plain text:

. . . Although we are not persuaded that

the reorganization of the statute relied on by

the Second District is a sound basis for

determining the issue presented in this case,

we do believe that the text of the notice

provision that became effective in 2012

supports the result reached by the district

court. That portion of the statute provides:

Effective July 1, 2012, an insurer

may limit payment as authorized by

this paragraph only if the insurance

policy includes a notice at the time of

issuance or renewal that the insurer

may limit payment pursuant to the

schedule of charges specified in this

paragraph.

§ 627.736(5)(a)5., Fla. Stat. (emphasis added).

This notice provision—providing that “an

insurer may limit payment” if the policy

contains notice that “the insurer may limit

payment pursuant to the schedule of

charges”—cannot be reconciled with the

argument that an election to use the

limitations of the schedule of maximum

charges precludes an insurer’s reliance on the

other statutory factors for determining the

reasonableness of reimbursements. . . .

(A14; italics in original; underline added). Elsewhere

in the decision, the Court also concluded that Section

627.736(5)(a)5 merely “requires that an insurer

provide notice of its election to use the schedule of

maximum charges[.]” (A4; underline added). Thus, the

Florida Supreme Court ignored or effectively rewrote

the plain text of the statute, which clearly requires

that the insurance policy must include “a notice,” into

a requirement that the policy must merely “contain

notice” or “provide notice,” without the preceding

indefinite article “a” found in the plain text of Section

627.736(5)(a)5.

Based on the conclusion that the “text” of Section

627.736(5)(a)5 “supports the result reached by the

district court,” the Florida Supreme Court approved

that result and found “that the PIP policy issued by

State Farm was effective to authorize the use of the

schedule of maximum charges” and that “[n]o basis has

been presented for invalidating State Farm’s election

of the limitations of the schedule of maximum

charges.” (A1, 14-15).

The Florida Supreme Court’s decision does not

mention that the case was decided by summary

judgment on a set of stipulated facts, and does not

mention any evidence or stipulated facts that the

Court relied upon to find that State Farm’s policy

included “a notice” that satisfied any of the specific

requirements of Section 627.736(5)(a)5 (A1-17).

The Petitioner subsequently filed a motion for

rehearing or clarification (A43-77). Among other

things, that motion contended that, like the Second

District’s prior decision, the Florida Supreme Court’s

decision erroneously reversed the trial court’s

judgment based on arguments that State Farm never

preserved for appeal and never argued as a basis for

reversing the trial court’s judgment. (A46-51).

The Petitioner’s motion also explained that the

parties’ competing motions for summary judgment

were based on and governed by a set of stipulated

facts, which did not address or establish that State

Farm’s insurance policy complied with any of the

requirements imposed by Section 627.736(5)(a)5. (A5760). The motion also explained that there was no

evidence that could support a determination that State

Farm complied with Section 627.736(5)(a)5. (A46, 5774).

The motion also explained that the Court had

disregarded the plain text of Section 627.736(5)(a)5

in violation of the “supremacy-of-text” and “wholetext” cannons of statutory construction, which the

Florida courts routinely profess to embrace. (A46-47,

60-74). Quoting and citing to this Court’s decision in

Niz-Chavez v. Garland, ___ U.S. ___, 141 S.Ct. 1474,

1481 (2021), the motion explained that the plain text

of Section 627.736(5)(a)5 required State Farm’s

insurance policy to include “a notice” as a “countable”

object, as opposing to merely requiring that policy to

“contain” or “provide notice” as a “noncountable

abstraction.” (A63-65).

The motion also explained that State Farm did not

present such evidence for any of the Petitioner’s 19

insured patients. (A68). There was no evidence

establishing that State Farm provided such “a notice”

to any of the 19 insured patients “at the time of

insurance or renewal” of their respective insurance

policies. (A46, 58, 62, 71), and no evidence establishing

the contents of such “a notice.” (A46, 62). In other

words, there was no evidence (much less the type of

undisputed material facts needed to prevail on a

motion for summary judgment) to demonstrate that

State Farm complied with any of the three

requirements imposed by the plain text of the first

sentence of Section 627.736(5)(a)5, which the Florida

Supreme Court concluded were satisfied. (A62, 71).

Instead of presenting any evidence of “a notice” to any

of the 19 insured patients, State Farm voluntarily

opted to enter into, and be bound by, a written

stipulation of the relevant enumerated set of facts that

would strictly govern the outcome of this lawsuit. (A44,

57-59, 68-69). But that stipulation is silent about the

requirements imposed by Section 627.736(5)(a)5, other

than to expressly confirm that the Petitioner disputed

that State Farm had

requirements. (A57-58).

complied

with

those

By order dated January 19, 2022, the Florida

Supreme Court denied the Petitioner’s motion for

rehearing or clarification. (A41). This timely petition

for writ of certiorari followed.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

THE FLORIDA SUPREME COURT

VIOLATED

THE

PETITIONER’S

CONSTITUTIONALLY

GUARANTEED

DUE PROCESS RIGHTS BY REVERSING

THE

TRIAL

COURT’S

SUMMARY

JUDGMENT

BASED

UNPRESERVED AND WAIVED ISSUE,

AND A DETERMINATION THAT IS

UNSUPPORTED BY ANY EVIDENCE OR

THE PARTIES’ STIPULATION OF

FACTS

A. Introduction

There is no evidence to support the Florida

Supreme Court’s determination on the unpreserved

issue of whether State Farm complied with the plain

text of the first sentence of Section 627.736(5)(a)5.

In reversing the trial court’s summary judgment

without any supporting evidence to support that

determination, the Florida Supreme Court violated the

Petitioner’s constitutionally guaranteed due process

rights.

B. Due process requires fact findings to be

supported by evidence

The Due Process Clauses of the Fifth and

Fourteenth Amendments to the United States

Constitution form the cornerstone upon which the

American justice system is built and upon which all

litigants rely when seeking to vindicate their rights in

all federal and state criminal, civil, and administrative

proceedings. The right to due process “is conferred, not

by legislative grace, but by constitutional guarantee.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541

(1985). This is a guarantee that the forefathers of this

nation placed their lives in peril to establish and

countless soldiers have died in battle to preserve.

The constitutionally guaranteed right to due

process contemplates that no person will be deprived

of life, liberty or property without reasonable notice

and a meaningful opportunity to confront the adverse

party’s arguments and evidence. Stated another way,

“[t]he fundamental requisite of due process of law is

the opportunity to be heard” and “at a meaningful time

and in a meaningful manner.” Goldberg v. Kelly, 397

U.S. 254, 267 (1970). These principles require that the

courts must give a litigant timely and adequate notice

detailing the reasons for an opposing party’s claim or

defense, and an effective opportunity to confront and

rebut that opposing party’s arguments and evidence.

Id., 397 U.S. at 267-268.

The right to be heard in a meaningful manner,

necessarily carries with it the right to present evidence

in support of one’s claim or defense, and the right to

confront and rebut the evidence presented by one’s

opponent. See, e.g., Interstate Commerce Comm’n v.

Louisville & N.R. Co., 227 U.S. 88, 93 (1913)

(“manifestly there is no hearing when the party does

not know what evidence is offered or considered, and

is not given an opportunity to test, explain, or refute”);

Baron v. Baron, 941 So.2d 1233, 1236 (Fla. 2d DCA

2006) (due process to be heard includes the right to

“introduce evidence at a meaningful time and in a

meaningful manner”).

Due process does not permit or tolerate an

adjudication for which there is no supporting evidence

in the record. See Superintendent, Massachusetts Corr.

Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985) (decision

does not comport with the minimum requirements of

procedural due process, unless the tribunal’s findings

are supported by some evidence in the record); Bearden

v. Georgia, 461 U.S. 660, 662-673 (1983) (court cannot

revoke defendant’s probation for failure to pay

imposed fine and restitution, absent evidence that

defendant was responsible for the failure or that

alternative forms of punishment were inadequate);

Douglas v. Buder, 412 U.S. 430, 432 (1973) (state court

violated defendant’s due process rights by revoking his

probation based on a finding that was devoid of

evidentiary support); Jackson v. Virginia, 443 U.S. 307,

314 (1979) (to comply with due process, meaningful

opportunity to defend, if not the right to a trial itself,

presumes that a total want of evidence to support a

charge will conclude the case in favor of defendant);

Vachon v. New Hampshire, 414 U.S. 478, 479-480

(1974) (defendant’s conviction reversed due to lack of

supporting evidence); California v. Green, 399 U.S.

149, 187, n. 20 (1970) (Justice Harlan, concurring) (due

process does not permit a conviction based on no

evidence); Gregory v. City of Chicago, 394 U.S. 111, 112

(1969) (convictions devoid of evidentiary support

violate due process); Shuttlesworth v. City of

Birmingham, 382 U.S. 87, 94-95 (1965) (it was a

violation of due process to convict and punish

defendant without evidence of his guilt); Adderley v.

State of Florida, 385 U.S. 39, 44 (1966) (state court’s

convictions based on a total lack of relevant evidence

would be a denial of due process); Thompson v. City of

Louisville, 362 U.S. 199, 206 (1960) (it is a violation of

due process to convict and punish a man without

evidence of his guilt), abrogated on other grounds by

Jackson v. Virginia, 443 U.S. 307 (1979); Schware v. Bd.

of Bar Exam. of State of N.M., 353 U.S. 232, 247 (1957)

(state bar applicant’s due process rights were violated

when his application was denied based on insufficient

evidence); Spruytte v. Walters, 753 F.2d 498, 509 (6th

Cir. 1985) (state prison officials violated due process by

taking action that was not supported by evidence

sufficient to satisfy state law requirements); Gwinn v.

Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004) (due

process requires “some evidence to support the

hearing panel’s decision”); Pub. Serv. Comm’n v.

FERC, 397 F.3d 1004, 1011-1013 (D.C.Cir. 2005)

(Kentucky Public Service Commission violated

petitioners’ due process rights when it adopted a rate

premium sua sponte and without evidence in the

record).

The right to due process also bars arbitrary

decisions, regardless of the fairness of the procedures

used to reach them. See Foucha v. Louisiana, 504 U.S.

71, 72 (1992). “A finding without evidence is arbitrary

and baseless.” Louisville & N.R. Co., 227 U.S. at 91. An

order is arbitrary and violates due process if it depends

on a finding reached without supporting evidence, or a

finding based on evidence that does not support it. R.R.

Comm’n of California v. Pac. Gas & Elec. Co., 302 U.S.

388, 399 (1938). Otherwise, a court “could disregard

all rules of evidence, and capriciously make findings

by administrative fiat.” Id. “Such authority, however

beneficently exercised in one case, could be

injuriously exerted in another, is inconsistent with

rational justice, and comes under the Constitution’s

condemnation of all arbitrary exercise of power.” Id.

Accordingly, this Court and federal circuit courts

uniformly hold that, in a civil lawsuit, a jury verdict

must be vacated if it is unsupported by any evidence.

See, e.g., Moore v. Chesapeake & O. Ry. Co., 340 U.S.

573, 578 (1951) (where there was no evidence to

support the plaintiff ’s negligence claim, the court trial

court properly granted defendant’s motion for

judgment notwithstanding the verdict); Piedmont &

Arlington Life Ins. Co. v. Ewing, 92 U.S. 377, 382 (1875)

(judgment for plaintiff reversed with directions to set

aside jury verdict where there was no evidence of the

existence of a valid contract to sustain the verdict);

Turner v. Upton County, Tex., 967 F.2d 181, 186 (5th

Cir. 1992) (reversing judgment in favor of plaintiff

where evidence was insufficient to sustain jury’s

verdict); Sutherland v. Elpower Corp., 923 F.2d 1285,

1290 (8th Cir. 1991) (reversing punitive damages

award due to insufficient evidence to sustain jury’s

verdict); Howard v. Walgreen Co., 605 F.3d 1239, 1242

(11th Cir. 2010) (motion for judgment as a matter of

law should be granted “when the plaintiff presents no

legally sufficient evidentiary basis for a reasonable

jury to find for him on a material element of his cause

of action”); Pickett v. Tyson Fresh Meats, Inc., 420 F.3d

1272, 1278 (11th Cir. 2005) (trial court should grant

judgment as a matter of law when the plaintiff

presents no legally sufficient evidentiary basis for a

reasonable jury to find for him on a material element

of his cause of action).

For these same reasons, a court cannot grant a

plaintiff ’s motion for summary judgment on its own

cause of action if an element thereof is unsupported

by any evidence. See, e.g., Celotex Corp. v. Catrett, 477

U.S. 317, 322-323 (1986); Matter of Maple Mortg., Inc.,

81 F.3d 592, 595 (5th Cir. 1993). See also UA Local 343

of the United Ass’n of Journeymen & Apprentices v.

Nor–Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir.

1994) (when party moving for summary judgment has

burden of proof for an element of a claim, that party

has burden of establishing a prima facie case in

support of its motion).

Thus, it is clear that a court’s determination that

is not sustained by any evidence in the record

necessarily violates due process and must be vacated.

C. The Florida Supreme Court clearly

violated due process

The Florida Supreme Court reversed the trial

court’s summary judgment based on the first sentence

of Section 627.736(5)(a)5, even though there was no

evidence that State Farm complied with any of the

three requirements imposed by the plain text of that

sentence. To make matters worse, the parties’

competing motions for summary judgment were

governed by a discrete set of stipulated facts and

evidence, and a “Stipulated and Agreed Case

Management Order” which clearly stated that “no

party [could] rely on additional facts or evidence not

contained in or attached to the fact stipulation.” (A57).

Contrary to the plain text of Section 627.736(5)(a)5,

there is no evidence or stipulated facts establishing

that State Farm’s insurance policies for the 19 insured

patients included “a notice,” or that such “a notice” was

included “at the time of issuance or renewal,” or that

such “a notice” stated “that the insurer may limit

payment pursuant to the schedule of charges[.]”

Without such supporting evidence, the Florida

Supreme Court’s conclusion that State Farm complied

with Section 627.736(5)(a)5 boils down to arbitrary

speculation and guesswork.

The egregious nature of the Florida Supreme

Court’s determination reached without the benefit of

supporting evidence is further exacerbated by the

incontrovertible fact that both the Second District and

the Florida Supreme Court reversed the trial court’s

summary judgment based on arguments that State

Farm never raised in the trial court or on appeal.

Ironically, the Florida Supreme Court rejected the

Second District’s sua sponte analysis of an

unpreserved issue, but then proceeded to reverse the

trial court based on its own sua sponte analysis of yet

another unpreserved issue. With respect to the

Florida Supreme Court’s decision, State Farm never

contended or established in the trial court that it

complied with the three requirements imposed by the

first sentence of Section 62.736(5)(a)5, and never asked

the Second District or the Florida Supreme Court to

reverse the trial court’s summary judgment on that

basis.

Florida appellate courts universally hold that

arguments not presented to the trial court are not

preserved for appeal, are deemed to have been waived,

and cannot be considered on appeal as grounds to

reverse the trial court. See, e.g., Young v. State, 141

So.3d 161, 165 (Fla. 2013); Insko v. State, 969 So.2d

992, 1002 (Fla. 2007); Florida Dept. of Financial

Services v. Freeman, 921 So.2d 598, 602 (Fla. 2006);

Nibert v. State, 508 So.2d 1, 3 (Fla. 1987); Dober v.

Worrell, 401 So.2d 1322, 1323-1324 (Fla. 1981); Vorbeck

v. Betancourt, 107 So.3d 1142, 1148 (Fla. 3d DCA 2012);

Massey Services, Inc. v. Sanders, 312 So.3d 209, 216

(Fla. 5th DCA 2021); Williams v. Lowe’s Home Centers,

Inc., 973 So.2d 1180, 1186 (Fla. 5th DCA 2008).

Except in cases involving “fundamental error”

(which is not present in this case), the Florida

appellate courts strictly apply the preservation

requirement, such that appellate review is limited to

the same specific grounds raised in the trial court. See,

e.g., Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.

2004); Steinhorst v. State, 412 So.2d 332, 338 (Fla.

1982); Tillman v. State, 471 So.2d 32, 35 (Fla. 1985);

Castor v. State, 365 So.2d 701, 703 (Fla. 1978); W.R.

Grace & Co.-Conn. v. Dougherty, 636 So.2d 746, 749

(Fla. 2d DCA 1994). Even when the appellee conceded

the trial court committed an error, the Second District

has nonetheless refused to reverse on that basis where

the appellant failed to preserve that error for appeal.

See, e.g., Rivers v. State, 980 So.2d 599, 601 (Fla. 2d

DCA 2008).

In Dober, the Florida Supreme Court observed

that “a procedure which allows an appellate court to

rule on the merits of a trial court judgment and then

permits the losing party to . . . assert matters not

previously raised renders a mockery of the ‘finality’

concept in our system of justice.” Id., 401 So.2d at 1324.

The Petitioner agrees with this observation, and there

was no basis to apply such a procedure in this case.

Even if an issue was squarely raised by the

appellant in the trial court and thereby preserved for

appellate review, a Florida appellate court still cannot

consider that issue as a basis to reverse the trial

court’s judgment unless the appellant actually raised

the issue in its briefs. If not, such issues are deemed to

have been waived or abandoned by the appellant. See,

e.g., Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990);

City of Miami v. Steckloff, 111 So.2d 446, 447-448 (Fla.

1959); Hammond v. State, 34 So.3d 58, 59 (Fla. 4th

DCA 2010); Polyglycoat Corp. v. Hirsch Distributors,

Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983).

Both the Florida Supreme Court and the Second

District have adamantly eschewed the notion of

deciding issues that have not been presented by the

appellant as a basis for reversing the trial court’s

judgment. For example, in Thompson v. DeSantis, 301

So.3d 180, 187-188 (Fla. 2020), the Florida Supreme

Court commented that it is not an appellate court’s

role to impose a remedy that petitioner has not

requested in its briefs. In Manatee County School Bd.

v. NationsRent, Inc., 989 So.2d 23, 25 (Fla. 2d DCA

2008), the Second District observed that it is

“inappropriate” for an appellate court “to depart from

[the] role of neutral tribunal and to become an

advocate by developing arguments that the

[appellant]—for whatever reason—has chosen not to

make” and that appellate court should “work within

the framework of the briefs[.]”

In Bainter v. League of Women Voters of Fla., 150

So.3d 1115 (Fla. 2014), the Florida Supreme Court

went one step further, and acknowledged that

reversing a trial court based on an unpreserved issue

violates due process:

At the outset of our analysis, we reject . . .

attempts to raise new issues . . . that were not

raised or discussed in the briefs. . . . “Basic

principles of due process”—to say nothing of

professionalism and a long appellate

tradition—“suggest that courts should not

consider issues raised for the first time at oral

argument” and “ought not consider

arguments outside the scope of the briefing

process.”

Id., 150 So.3d at 1126, quoting Powell v. State, 120

So.3d 577, 591 (Fla. 1st DCA 2013). Indeed, the Florida

appellate courts universally hold that when a court

sua sponte decides issues that are not raised by the

parties, it is a violation of due process. See, e.g., Rucker

v. Just Brakes, 75 So.3d 807, 808 (Fla. 1st DCA 2011);

Lobree v. ArdenX LLC, 199 So.3d 1094, 1098 (Fla. 3d

DCA 2016); Nat’l City Bank v. Nagel, 95 So.3d 458,

459 (Fla. 4th DCA 2012); GMAC Mortg., LLC v.

Choengkroy, 98 So.3d 781, 782 (Fla. 4th DCA 2012);

Liton Lighting v. Platinum Television Group, Inc., 2 So.3d

366, 367 (Fla. 4th DCA 2008); Williams v. Primerano,

973 So.2d 645, 647 (Fla. 4th DCA 2008).

This case presents a situation that is far worse

than a surprise appellate decision on an unpreserved

issue for which there is no supporting evidence. In this

case, State Farm actually agreed, and the trial court

ordered, that the parties’ competing motions for

summary judgment would be strictly governed by a

discrete set of stipulated facts and evidence. However,

the stipulated facts and evidence do not come close to

supporting

the

Florida

Supreme

Court’s

determination that State Farm complied with the

three requirements imposed by the first sentence of

Section 627.736(5)(a)5. That determination must,

therefore, be reversed and vacated.

---------------------------------♦---------------------------------

CONCLUSION

In the United States of America, including the

State of Florida, judges take oaths swearing to support

our Constitution. The right of due process enshrined

within that Constitution guarantees that a decision

reached by any federal or state court without

supporting evidence will not be tolerated and will be

swiftly nullified. We respectfully request this Court to

honor and enforce that guaranty. Otherwise, our

sacred Constitution is rendered illusory and

meaningless.

This case involves a fundamental and critical

issue that deserves to receive plenary review by this

Honorable Court. The Florida Supreme Court accepted

jurisdiction over this case on the grounds that it

involves a matter of “great public importance.”

However, its decision below now manifests an injustice

of an even greater public importance. That decision

cannot be reconciled with the fundamental

cornerstone right of due process rights guaranteed to

all Florida litigants by the Fourteenth Amendment of

the United States Constitution and the well-settled

case law construing that right. If that cornerstone is

permitted to crack or chip away, our entire justice

system falls like a house of cards.

No federal or state court in the United States is

authorized to decide an issue in a manner that is

unsupported by any evidence and beyond the scope of

the parties’ stipulation of facts. This is especially true

when that issue was not presented by the appellant to

the trial court and then not raised on appeal as a basis

for reversing the trial court’s summary judgment.

Nonetheless, in this case, the Florida Supreme

Court decided an issue that State Farm did not present

to the trial court, and was, therefore, waived. After

waiving the issue in the trial court, State Farm again

waived the issue by not raising it in the Second

District. The Florida Supreme Court’s subsequent

determination of that waived issue is both

unsupported by any evidence in the record and

beyond the discrete set of stipulated facts that the

parties agreed and the trial court ordered would

strictly govern the parties’ competing motions for

summary judgment. This series of significant errors

amounts to an egregious due process violation that

has been unequivocally demonstrated.

Accordingly, the Petitioner respectfully requests

this Honorable Court to grant this petition for writ of

certiorari and to conduct a plenary review of the

Florida Supreme Court’s decision. Alternatively, this

Court may wish to consider entering a summary

reversal pursuant to Supreme Court Rule 16.1 This

Court has repeatedly granted summary reversal and

vacated state court decisions that clearly violate

controlling precedents. See, e.g., Ritz-Carlton

Development Co. v. Narayan, 136 S.Ct. 799 (2016);

Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530

(2012); Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17,

17 (2012); Am. Tradition P’ship, Inc. v. Bullock, 567 U.S.

516 (2012); Hinton v. Alabama, 571 U.S. 263 (2014);

KPMG LLP v. Cocchi, 565 U.S. 18 (2011); Presley v.

Georgia, 558 U.S. 209 (2010); CSX Transp., Inc. v.

Hensley, 556 U.S. 838 (2009).

Dated: March 7, 2022.

Respectfully submitted,

DAVID M. CALDEVILLA

Counsel of Record

DE LA PARTE & GILBERT, P.A.

Post Office Box 2350

Tampa, FL 33601-2350

Telephone 813-229-2775

dcaldevilla@dgfirm.com

serviceclerk@dgfirm.com

Counsel for Petitioner

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