       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          BRYAN G. RUDNICK,
                              Petitioner,

                                    v.

                         ALLYSON E. HARMAN,
                             Respondent.

                             No. 4D20-1004

                             [July 22, 2020]

   Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Renatha S. Francis, Judge; L.T. Case
No. 502009DR008401XXXXSB (FC).

  Peter M. Feaman, Gordon A. Dieterle, Jeffrey T. Royer, and Nancy E.
Guffey of Peter M. Feaman, P.A., Boynton Beach, for petitioner.

  Jonathan S. Root and Christopher A. Tiso of Jonathan S. Root, P.A.,
Boca Raton, for respondent.

WARNER, J.

   The former husband in divorce modification proceedings seeks
certiorari review of two orders: one denying his motion to dismiss the
former wife’s petition for modification, and one granting the former wife’s
motion to waive mediation. He contends that the court departed from the
essential requirements of the law by waiving compliance with mediation,
which was a condition precedent in the parties’ marital settlement
agreement, without an evidentiary hearing. We agree and grant the
petition as to the order waiving the mediation requirement.

   The parties are divorced with a minor child and share parental
responsibility. Since the final judgment of dissolution was entered in
2009, the parties have engaged in litigation over the marital settlement
agreement. The agreement was most recently modified in 2015. The
operative settlement agreement provides: “In the event of any child support
modification litigation (or any other type of modification litigation), the
parties shall mediate said issues within 90 days of a request by either
party prior to filing the supplemental petition.”
   After entry of the settlement agreement, the parties continued to have
various disputes with respect to the child. Multiple motions were filed. It
appears mediation was ordered as to specific issues presented in those
motions. In October 2019, the former wife filed a petition for modification,
but, as admitted in her response in this court, she did not seek to mediate
the disputes prior to filing the petition as required by the settlement
agreement. While the former husband was represented by counsel in other
pending motions, he filed a pro se motion to dismiss the petition for failure
to comply with the mediation provision.

    At the same time, the parties bickered regarding setting mediation on
the court ordered issues. There is some dispute as to whether this would
include the petition for modification. However, after the former husband
filed his motion to dismiss, he refused to mediate on the modification
issues, demanding compliance with the provision in the marital settlement
agreement.

    Frustrated by the inability to agree on a mediation date or the scope of
mediation, the former wife filed a motion to compel mediation and set it
for hearing on March 11, 2020, on the uniform motion calendar. Two days
prior to the hearing, the former husband filed a motion to strike the notice
of hearing. Later the same day, the former wife filed her motion to waive
mediation and noticed it for March 11, 2020, on the uniform motion
calendar.

    At the hearing, which was not attended by the former husband, the
former wife’s attorney submitted his view of the various difficulties with
setting mediation. He informed the court about the mediation provision
in the marital settlement agreement but maintained “[T]his is the game
that’s occurring. So we couldn’t get them to agree to mediation, so I filed.”
The former wife’s attorney then detailed his view that the former husband
was playing a “cat and mouse” game with respect to scheduling mediation.
Without the presentation of any evidence, the trial court granted the
former wife’s motion to waive the mediation requirement contained in the
settlement agreement. At a subsequent hearing, the court also denied the
former husband’s motion to dismiss based upon the mediation provision
in the settlement agreement. The former husband then filed this petition
for writ of certiorari.

   “[T]here are two indispensable ingredients to common law certiorari
when sought to review pretrial orders of the circuit courts: (1) irreparable
injury to the petitioner that cannot be corrected on final appeal (2) caused
by a departure from the essential requirements of law.” Bared & Co., Inc.

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v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996). A petitioner may
obtain certiorari review of the denial of a motion to dismiss for failure to
comply with presuit conditions precedent. See Kissimmee Health Care
Assocs. v. Garcia, 76 So. 3d 1107, 1108 n.1 (Fla. 2d DCA 2011). Just as
with statutes compelling presuit requirements, this requirement in the
marital settlement agreement to mediate prior to suit “cannot be
meaningfully enforced postjudgment because the purpose of the presuit
screening [or mediation] is to avoid the filing of the lawsuit in the first
instance.” See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.
2d 646, 649 (Fla. 2d DCA 1995). We conclude that the former husband’s
petition has shown irreparable harm.

    The trial court departed from the essential requirements of law in
granting the motion to waive the presuit mediation requirement without
holding an evidentiary hearing on the issue. See, e.g., Epstein v. Precision
Response Corp., 883 So. 2d 377 (Fla. 4th DCA 2004). The question of
waiver depends upon the existence of competent, substantial evidence to
support the finding. See, e.g., Doctors Assocs., Inc. v. Thomas, 898 So. 2d
159 (Fla. 4th DCA 2005). While the former wife contends that a hearing
is not necessary where the underlying facts are undisputed, on this record
the facts are disputed as to whether the former husband waived the right
to mediate before litigation commenced. In a proceeding where evidence
on this issue may be presented, the court may conclude that the former
husband acted inconsistently with his right to demand presuit mediation;
on the other hand, the court may view his actions as an attempt to assert
his rights under the marital settlement agreement.

    As to the order denying the motion to dismiss, we cannot conclude that,
on its own, it can be addressed through this petition. As a general
proposition, a party must allege (and prove) the satisfaction of all
conditions precedent to suit. See Fla. R. Civ. P. 1.20(c). While certiorari
would not be available to review the denial of a motion to dismiss on those
grounds, the former husband would be entitled to raise the failure to
comply with such condition precedent as an affirmative defense to former
wife’s petition for modification. The satisfaction of conditions precedent
would then have to be proved at trial. In the context of these proceedings,
it appears that the order denying the motion to dismiss the petition for
failure to comply with presuit mediation simply flowed from the order
waiving the provision. Therefore, that issue may be reconsidered by the
court in further proceedings, depending upon the resolution of the motion
to waive mediation.

   For these reasons, we grant the petition and quash the order granting
the motion to waive compliance with the mediation provision of the marital

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settlement agreement. The court must conduct an evidentiary hearing on
the issue.

MAY and GERBER, JJ., concur.

                         *        *        *

  Not final until disposition of timely filed motion for rehearing.




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