Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ROBERT HICKS, ) ) Petitioner, ) ) v. ) Case No. 2D20-1585 ) EDWARD G. KEEBLER and JEFFREY D. ) PEARSON, as co-personal representatives ) of the Estate of James Stephen George ) Boggs, deceased, ) ) Respondents. ) ___________________________________) Opinion filed February 12, 2021. Petition for Writ of Certiorari to the Circuit Court for the Thirteenth Judicial Circuit for Hillsborough County; sitting in its appellate capacity. Denis A. Cohrs and Matthew R. Payne of The Cohrs Law Group, P.A., Clearwater, for Petitioner. Eric W. Smith and Judith S. Lambert of Lambert Law Offices, P.L., Brandon, for Respondents. SILBERMAN, Judge. Robert Hicks, plaintiff below, seeks second-tier certiorari review of a circuit court decision affirming a final summary judgment for the defense based on the expiration of the statute of limitations. The underlying action arose from a December 1999 contract in which Hicks commissioned artwork from J.S.G. Boggs to be produced and delivered at "some unspecified future date." Boggs died in January 2017 without having delivered the art, and Hicks filed a breach of contract action against Boggs' Estate in the Hillsborough County Court in November 2017. Hicks argues, and we agree, that the Estate was not entitled to summary judgment because there was a genuine issue of material fact regarding when the statute of limitations began to run. Further, under the circumstances of this case, we conclude that Hicks has established that the circuit court's affirmance of the final summary judgment was a departure from the essential requirements of the law. Accordingly, we grant the petition for certiorari. Boggs was an American artist who was best known for his hand drawn replicas of paper currency which became known as "Boggs Bills." Hicks, an attorney and avid art collector, commissioned Boggs to create a "Justice Series" of Boggs Bills that would depict the likenesses of certain justices of the United States Supreme Court. Hicks alleged that he entered into a written contract with Boggs through Boggs' agent, Szilage Gallery at 145, on December 29, 1999. The contract required Hicks to pay a $6000 deposit toward a $12,000 purchase price. It did not specify a time for delivery of the commissioned art and in fact provided for delivery at "some unspecified future date." Upon delivery, the remaining $6000, plus sales tax, would be due and payable. The contract further provided that if Hicks was not satisfied with the Boggs Bills upon delivery, he could cancel the contract and Boggs would be entitled to keep ten percent of the purchase price. Hicks alleged that he delivered a $6000 deposit check to the Gallery on December 30, 1999. The -2- check was negotiated and Hicks received a purchase invoice from the Gallery. Boggs died in January 2017 without having delivered the Boggs Bills to Hicks. In October 2017, Hicks filed a statement of claim in Boggs' probate proceeding to which Boggs' Estate objected. On November 8, 2017, Hicks filed a verified complaint against the Estate in county court for breach of contract, return of deposit, and specific performance. The complaint was subsequently amended without a change to the substance of the claims. The Estate filed an answer and affirmative defenses in which it asserted, among other defenses, that the claims were barred by the five-year statute of limitations for actions founded on written agreements in section 95.11(2)(b), Florida Statutes (2016). The Estate moved for summary judgment on the statute of limitations defense, relying on the amended complaint, its attachments, the answer and affirmative defenses, and the Estate's responses to discovery requests. Hicks filed and served an affidavit in opposition in which he asserted that it was common in the art industry to leave the date of delivery of commissioned artwork to the artist. Hicks said he expected that the commissioned Boggs Bills would be delivered at some time between the execution of the contract and the date of Boggs' death and that his discussions with Boggs were clear that the artwork would be delivered at some future date. He stated that Boggs never indicated that he would not create and deliver the art. Despite the assertions in Hicks' affidavit regarding industry custom and his own expectations about delivery of the commissioned art, the court entered an order granting summary judgment and finding that Hicks' claims "were barred as a matter of law due to the expiration of the statute of limitations." The court subsequently entered a -3- final judgment that contained no additional explanation of the court's legal reasoning, and the record does not contain a transcript of the summary judgment hearing. On rehearing, Hicks argued that the statute of limitations did not run until the time of breach and that there had been no breach because Boggs died before he could perform. The Estate asserted that because the contract did not specify a time for performance, the court was entitled to infer a reasonable time for performance. The Estate argued that it was unreasonable to expect performance after ten to twenty years and that the court should determine the issue as a matter of law. In response, Hicks asserted that if the reasonable time standard applied there was a question of fact regarding what was reasonable under the particular circumstances of the case. The court took the matter under advisement and entered an order denying the motion for rehearing without setting forth its reasoning. Hicks appealed to the circuit court, and the parties filed briefs in which they reasserted the arguments they had made to the county court. The circuit court issued a per curiam affirmance along with a well-reasoned opinion by Judge Elizabeth G. Rice dissenting in part on the basis that summary judgment was improper because there was a question of fact on the issue of a reasonable time for performance. Hicks then filed a petition for second-tier certiorari review in this court. Hicks argues that the circuit court departed from the essential requirements of the law when it affirmed the county court's entry of summary judgment. Hicks contends that, in granting summary judgment, the county court must have "implicitly held that as a matter of law, a reasonable amount of time for performance occurred at some unknown time before November 8, 2012, five years prior to the filing -4- of this action." Hicks asserts that this was error because there was a genuine issue of material fact regarding what was a reasonable time for performance under the particular circumstances of the case. On second-tier certiorari, this court's scope of review is limited to the question of whether the circuit court departed from the essential requirements of the law. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). In conducting this inquiry, this court may consider only whether the circuit court afforded the petitioner procedural due process and applied the correct law. Id. Certiorari review should only be granted when the circuit court "has violated a clearly established principle of law resulting in a miscarriage of justice." Id. This requires "more than a simple legal error." Id. At the core of this case is the propriety of the county court's decision to grant summary judgment as a matter of law based on its conclusion that the statute of limitations had expired. The statute of limitations for "[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument" is five years. § 95.11(2)(b). The statute of limitations begins to run "from the time the cause of action accrues," which is "when the last element constituting the cause of action occurs." § 95.031(1). Generally, the statute of limitations on a claim for breach of contract begins to run at the time of the breach. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996). In this case, however, there is no evidence establishing a breach of contract prior to Boggs' death, and the county court did not determine when any possible breach had occurred. Hicks and Boggs agreed that the Boggs Bills would "be -5- delivered at some unspecified future date," and there is no indication that Boggs refused to create and deliver the art. If a contract fails to specify a time for performance, then the law infers it will take place within a reasonable time. Patrick v. Kirkland, 43 So. 969, 971 (Fla. 1907); 1700 Rinehart, LLC v. Advance Am., 51 So. 3d 535, 540 (Fla. 5th DCA 2010); A.I.C. Trading Corp. v. Susman, 40 So. 3d 769, 772 (Fla. 3d DCA 2010). The circumstances to consider in determining what constitutes a reasonable time include the contract's subject matter, the parties' situation, the parties' intentions, and the circumstances of performance. Sound City, Inc. v. Kessler, 316 So. 2d 315, 317 (Fla. 1st DCA 1975). It is a well-settled principle of Florida law that if there is a factual dispute as to when the last element of the claim accrued and the statute of limitations began to run, the issuance of summary judgment is improper. See Celotex Corp. v. Copeland, 471 So. 2d 533, 539 (Fla. 1985); Blinn v. W. Shore Villas of Naples Owners' Ass'n, 182 So. 3d 686, 688 (Fla. 2d DCA 2015); Miles Plastering & Assocs., Inc. v. McDevitt & St. Co., 573 So. 2d 931, 932 (Fla. 2d DCA 1991); Collections, USA, Inc. v. City of Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002). The parties' contract in this case did not specify a time for performance but instead recognized that the time would be left open. Thus, under the applicable law, the critical issue to be determined was what constituted a reasonable time for performance under the circumstances including the contract's subject matter, the parties' situation, the parties' intentions, and the circumstances of performance. As the party moving for summary judgment, the Estate bore the burden of establishing that there were no -6- genuine issues of material fact. See Estate of Githens ex rel. Seaman v. Bon Secours- Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). Here, the county court did not hold the Estate to its burden of proof and did not determine what constituted a reasonable time for performance of the contract under all of the pertinent circumstances. Instead, the court simply determined that the statute of limitations had expired without addressing the circumstances of the case. The circuit court compounded this error when it upheld the county court's decision. We recognize that on second-tier certiorari review, we can only grant relief if the circuit court's decision affirming without a written opinion "violated a clearly established principle of law resulting in a miscarriage of justice." Custer Med. Ctr., 62 So. 3d at 1092. "As a case travels up the judicial ladder, review should consistently become narrower, not broader." Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). The district court's discretion whether to grant certiorari relief will "depend on the court's assessment of the gravity of the error and the adequacy of other relief." Custer Med. Ctr., 62 So. 3d at 1092 (quoting Heggs, 658 So. 2d at 531 n.14). An appellate decision issued without a written opinion generally will not merit certiorari review in the district court because it has no precedential value in other cases. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005). However, there are occasions in which certiorari review of a per curiam affirmance is warranted so as to avoid "an unjustified approval of the obvious failure of the circuit court to apply the correct law" and the resulting miscarriage of justice. Auerbach v. City of Miami, 929 So. 2d 693, 694-95 (Fla. 3d DCA 2006); see also United Auto. Ins. Co. v. A 1st Choice Healthcare Sys., 21 So. 3d 124, 127-28 (Fla -7- 3d DCA 2009) (determining that second-tier certiorari relief was appropriate because the circuit court's per curiam affirmance failed to provide relief from the county court's misinterpretation of the plain language of a statutory provision); Williams v. Miami-Dade County, 969 So. 2d 389, 393 (Fla. 3d DCA 2007) (granting second-tier certiorari relief from the circuit court's decision, made in its appellate capacity without a written opinion, because the record lacked evidentiary support for the county's decision to terminate a corrections officer); Kneale v. Jay Ben Inc., 527 So. 2d 917, 918 (Fla. 3d DCA 1988) (granting certiorari relief where the circuit court affirmed without opinion a county court decision that failed to adhere to a basic rule concerning the measure of damages in a breach of contract action, resulting in a miscarriage of justice). Judge Rice's dissenting opinion from the circuit court's per curiam affirmance thoroughly addressed the county court and circuit court's failures to apply the controlling law. Judge Rice correctly noted that the Estate, as the party moving for summary judgment, bore the burden to establish that there were no genuine issues of material fact. In this contract case, one of the Estate's burdens was to establish what constituted a reasonable time period, under all of the relevant circumstances, for Boggs to deliver the art that he contracted to deliver. The Estate also had the burden to establish that Boggs had breached the contract in some manner. As Judge Rice explained, while Boggs did not deliver the artwork before his death, the Estate presented no evidence as to his breach of the contract prior to his death, whether by repudiation or otherwise. Arguably, it was his death that started the running of the statute of limitations. In her view, the rulings against Hicks resulted from the failure "to follow applicable Florida law governing the determination of what -8- constitutes a 'reasonable time to perform' under a contract containing no express time for performance." She concluded that this failure constituted "prejudicial error and deprived Hicks of valuable substantive and procedural rights." It appears that the Estate's position and the decisions of the county and circuit courts can be summarized as follows: Boggs did not deliver the art by some undetermined reasonable date; therefore, he had to have been in breach of the contract well before his death which started the running of the applicable statute of limitations. Yet in the county court Hicks had challenged this position by filing his affidavit in opposition to summary judgment, addressing the particular circumstances surrounding the contract, including what he maintained was customary in the art world as to performance of a contract for the artwork. Despite the opposing evidence and without providing any findings or explanation, the county court simply determined that the statute of limitations had run, thereby barring Hicks' claims. The circuit court affirmed, again without explanation, ignoring the detailed analysis set out by Judge Rice. Under these circumstances, we are compelled to conclude that both the county and circuit courts failed to apply the proper law in reaching their respective conclusions. And the circuit court's failure to apply the correct law on appeal effectively closed the courthouse doors to Hicks, denying him the opportunity to establish his claims despite his having filed supporting evidence. This constitutes a miscarriage of justice. Therefore, Hicks is entitled to proceed with his claims. Having determined that the circuit court failed to apply the correct law and that this constitutes a miscarriage of justice, we quash the circuit court’s order affirming the final summary judgment. In the past, we would have remanded the case for the -9- circuit court to reconsider the merits of this appeal. See Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 844 (Fla. 2001) (explaining that the district court's quashal of a circuit court order on second-tier certiorari review returns the parties to the same positions they were in preceding the entry of the circuit court's ruling). At this time, however, the circuit court’s jurisdiction over the appeal has been eliminated by chapter 20-61, section 3, Laws of Florida, effective January 1, 2021. Should we remand the case, the circuit court—now lacking appellate jurisdiction—would then be compelled to transfer the appeal to this court, which has appellate jurisdiction over final judgments of trial courts that are not directly appealable to a circuit court under article V, section 4(b)(1), of the Florida Constitution. In the interest of judicial economy, we have reviewed the merits of the appeal of the final summary judgment rendered by the county court, and we reverse the final summary judgment and remand the case to the county court for further proceedings. Petition for certiorari granted; order affirming final summary judgment quashed; final summary judgment reversed; case remanded. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. - 10 -