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.”
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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.