Third District Court of Appeal
                                 State of Florida

                           Opinion filed August 5, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-2232
                   Lower Tribunal Nos. 12-56 AP & 12-224 AP
                              ________________


                 United Automobile Insurance Company,
                                     Petitioner,

                                          vs.

          Comprehensive Health Center, a/a/o Erla Telusnor,
                                    Respondent.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jennifer D. Bailey, Lisa S. Walsh, and Marcia B. Caballero, Judges.

      Thomas Hunker, for petitioner.

      Marlene S. Reiss, for respondent.


Before ROTHENBERG, LAGOA, and SCALES, JJ.

      LAGOA, J.

      The petitioner, United Automobile Insurance Company (“United”), petitions

for a writ of certiorari seeking to: (1) quash a decision of the appellate division of
the circuit court remanding for a trial on the issue of the reasonableness of the

claimant’s, Erla Telusnor (“Telusnor”), failure to attend an Independent Medical

Examination (“IME”); and (2) quash an order of the appellate division of the

circuit court denying its motion for appellate attorney’s fees.

      Because the appellate division of the circuit court failed to apply the correct

law when it failed to apply the law of the case, we grant the petition for writ of

certiorari and quash the circuit court appellate division’s decision. We also quash

the appellate division’s order denying United’s motion for appellate attorney’s fees

under the offer of judgment statute, section 768.79, Florida Statutes (2012). If the

terms of the offer of judgment statute are ultimately satisfied, then United shall be

entitled to recover its appellate attorney’s fees.

I.    FACTUAL AND PROCEDURAL HISTORY

      This is the second time this case has been before this Court on petition for

writ of certiorari. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 

(Fla. 3d DCA 2010), review denied, 

(Fla. 2011) (circuit

court opinion at United Auto. Ins. Co. v. Comprehensive Health Ctr., Inc., 

. Weekly Supp. 1143a (Fla. 11th Cir. Ct. Oct. 21, 2009)) (“Comprehensive I”).

      The    underlying     facts   concerning       Comprehensive   Health   Center’s

(“Comprehensive”) complaint against United seeking personal injury protection

(PIP) benefits are set forth in this Court’s opinion in Comprehensive I.            In



                                            2
Comprehensive I, the appellate division of the circuit court held that it was

unreasonable that Telusnor failed to attend the IMEs because her lawyer did not

tell her about the appointment. Comprehensive then filed a petition for writ of

certiorari to this Court, seeking to quash the appellate division’s decision. This

Court denied Comprehensive’s petition, concluding that the circuit court did not

depart from the essential requirements of the law when it held Telusnor’s failure to

attend IMEs to be 

. Comprehensive moved for

rehearing, arguing that this Court’s opinion conflicted with Custer Medical Center

v. United Automobile Insurance Co., 

(Fla. 2010). This Court

denied the motion.

      Comprehensive then petitioned the Supreme Court of Florida to exercise its

discretionary jurisdiction on the basis that this Court’s opinion directly conflicted

with Custer. The Supreme Court denied review. Comprehensive Health Ctr., Inc.

v. United Auto. Ins. Co., 

(Fla. 2011).

      On subsequent remand in the trial court, Comprehensive filed a Second

Motion for Summary Judgment, arguing that pursuant to Custer, mere non-

attendance at a scheduled IME is not a defense to an action for PIP benefits, and

that United failed to allege and prove an unreasonable refusal to attend the IMEs.

United filed a Cross-Motion Motion for Summary Judgment, asserting that




                                         3
pursuant to the mandate of the appellate court, it was entitled to summary

judgment in its favor as a matter of law.

      The trial court granted Comprehensive’s Second Motion for Summary

Judgment, stating that pursuant to Custer, “in order for it to constitute a defense to

payment of subsequently received PIP bills the insurance company must plead and

prove that the insured ‘unreasonably refused’ to attend the [IME].” The trial court

entered final judgment in the amount of $4,935.60 in favor of Comprehensive.

      United appealed to the appellate division of the circuit court, arguing that the

trial court failed to follow the law of the case and mandates established by both the

appellate division of the circuit court and this Court in Comprehensive I. United

also filed a Motion for Attorney’s Fees Based on Rejected Offer of Judgment

pursuant to section 768.79, Florida Statutes.

      The appellate division reversed the summary judgment entered in favor of

Comprehensive, but remanded for a trial on whether Telusnor unreasonably failed

to attend the IMEs. We note that in Comprehensive I, the appellate division had

already answered that question, finding Telusnor in fact acted unreasonably. In

reaching its conclusion on this second round of appeals, the appellate division,

without discussing its own prior holding, stated that, because this Court denied

certiorari in Comprehensive I, our opinion was merely “dicta” which did not

constitute the law of the case. Citing to Custer, the appellate division also noted



                                            4
that “United was required to plead and prove unreasonable refusal if it intends to

prevail on this defense.” United Auto. Ins. Co. v. Comprehensive Health Ctr., 

(Fla. 11th Cir. Ct. Aug. 5, 2013). Asserting that the

“record remains silent after two appeals as to the reasonableness or

unreasonableness of Telusnor’s failure to attend the IME,” the appellate division

held that summary judgment was inappropriate, and remanded for a trial. 

division also entered an order denying United’s motion for

appellate attorney’s fees and costs. United then filed the present petition for writ

of certiorari.

II.    STANDARD OF REVIEW

       “[W]hen a district court considers a petition for second-tier certiorari review,

the ‘inquiry is limited to whether the circuit court afforded procedural due process

and whether the circuit court applied the correct law,’ or, as otherwise stated,

departed from the essential requirements of law.” Custer Med. Ctr. v. United

Auto. Ins. Co., 

, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev.

v. Heggs, 

, 530 (Fla. 1995)); accord Ivey v. Allstate Ins. Co., 

, 682 (Fla. 2000) (“[T]he proper inquiry under certiorari review is

limited to whether the circuit court afforded procedural due process and whether it

applied the correct law.”).




                                           5
      A second-tier certiorari proceeding “cannot be used to grant a second appeal

to correct the existence of mere legal error,” and “a district court should exercise

its discretion to grant review only when the lower tribunal has violated a clearly

established principle of law resulting in a miscarriage of justice.” Custer, 

at 1092-93; accord Allstate Ins. Co. v. Kaklamanos, 

, 889 (Fla.

2003); 

, 683 (stating that a court’s misapplication of the

correct law or “erroneous interpretation of [a] law” is not a departure from the

essential requirements of the law).

             A departure from the essential requirements of law is not
             mere legal error, but instead, involves a “gross
             miscarriage of justice.” 

. Due to
             its discretionary nature, a district court of appeal may
             refuse to grant certiorari relief even if there is legal error
             which could be argued to be a departure from the
             essential requirements of law.

Sutton v. State, 

, 1081 (Fla. 2008).

      Relevant here, it has been established that when a lower court fails to follow

the law of the case, certiorari is warranted “because such failure exceeds the court's

role in the appellate process.” Dougherty v. City of Miami, 

, 966

(Fla. 3d DCA 2012); accord Dougherty v. City of Miami, 

, 158 (Fla.

3d DCA 2009) (Wells, J., specially concurring) (granting petition for certiorari and

quashing circuit court appellate division’s opinion because it failed to apply the




                                           6
law of the case as established by its own prior decision, which became binding

upon this Court’s denial of certiorari review).




III.   ANALYSIS

       United asserts that certiorari is appropriate because the circuit court failed to

follow the law of the case as established in Comprehensive I when it remanded

for a trial on the issue of the reasonableness of Telusnor’s excuse for her failure to

attend the IMEs. We agree with United.

       A. The law of the case doctrine

       The law of the case doctrine applies where successive appeals are taken in

the same case. Delta Prop. Mgmt. v. Profile Invs., Inc., 

, 770 (Fla.

2012); Fla. Dep’t of Transp. v. Juliano, 

, 105 (Fla. 2001). It

provides that “questions of law decided on appeal to a court of ultimate resort must

govern the case in the same court and the trial court, through all subsequent stages

of the proceedings.” McGregor v. Provident Trust Co. of Phila., 

, 327

(Fla. 1935); see also 

(“The doctrine of the law of the

case requires that questions of law actually decided on appeal must govern the case

in the same court and the trial court, through all subsequent stages of the

proceedings.”).



                                           7
      Pursuant to the law of the case doctrine, a lower court cannot change the law

of the case as established by the highest court hearing the case, and a trial court

must “follow prior rulings of the appellate court as long as the facts on which such

decision are based continue to be the facts of the case.” 

;

see also Brunner Enters., Inc. v. Dep’t of Revenue, 

(Fla. 1994).

And, although an appellate court has the power to change the law of the case

established in its prior decision where adherence to the rule would result in a

“manifest injustice,” Strazzulla v. Hendrick, 

, 4 (Fla. 1965), a question

of law decided on appeal will seldom be reconsidered or reversed, even when it

appears to have been erroneous. See 

; Parker Family

Trust I v. City of Jacksonville, 

(Fla. 1st DCA 2001).

      As a result, absent extraordinary circumstances, the ruling of an appellate

court in an earlier appeal is binding on the lower court on remand, and on the

appellate court in a subsequent appeal in the same case. See Henry v. State, 

, 1364 (Fla. 1994) (“[A]ll points of law which have been previously

adjudicated by a majority of this Court may be reconsidered only where a

subsequent hearing or trial develops material changes in the evidence, or where

exceptional circumstances exist whereby reliance upon the previous decision

would result in manifest injustice.”); see also Brunner Enters., 

(stating that the lower courts cannot change the law of the case as decided



                                         8
by the highest court hearing a case, and that the highest court hearing a case and

should only modify the law of the case when adherence to it would result in

“manifest injustice”).

      United argues that certiorari is appropriate here because the trial court and

the appellate division of the circuit court failed to follow the law of the case as

established in Comprehensive I. We agree. Contrary to the appellate division’s

statement on review before us here, the record is not silent on the issue of

“reasonableness.”

      During the trial proceedings giving rise to Comprehensive I, the trial court

conducted a hearing on cross motions for summary judgment as to the

reasonableness of Telusnor’s excuse for her failure to attend the IME’s, and it

concluded that summary judgment should be entered in favor of Comprehensive.

      Specifically, the appellate division found that Telusnor received notice of the

IME, through her attorney, as the “IME notice was sent certified mail to her

attorney and by regular mail to her.” Comprehensive Health Ctr., 

.

Weekly Supp. 1143a. Moreover, the provider, Comprehensive, “admitted at the

lower court hearing that notice to the attorney constitutes notice to the client.” 

the appellate division concluded that Telusnor’s failure to attend the IME

was “an ‘unreasonable refusal’ under the statute” as “it is not a valid excuse for

nonattendance, when the claimant is represented by counsel, and counsel received



                                          9
valid notice.” 

division, therefore, reversed in Comprehensive I,

holding that based on the evidence presented, which was admittedly undisputed,

Telusnor’s excuse, as a matter of law, was not reasonable, and that the trial court

erred in granting summary judgment in favor of Comprehensive “when the

claimant unreasonably refused to attend the IME.” 1 

to this Court, we denied Comprehensive’s petition for certiorari

review, finding that “the appellate division of the circuit court did not depart from

the essential requirements of the law when it held it to be unreasonable that

claimant Erla Telusnor failed to attend Independent Medical Exam appointments

because her lawyer did not tell her about the 

.

Contrary to the appellate division’s current statement that our finding in

Comprehensive I was dicta, the appellate division’s earlier finding about the

unreasonableness of Telusnor’s failure to attend was the central issue before this

Court and necessary to our elaborated decision in Comprehensive I denying

certiorari, and it thus constitutes the law of the case. See Topps v. State, 

1253, 1258 (Fla. 2004) (“[U]nelaborated orders denying relief in connection

with all extraordinary writ petitions issued by Florida courts shall not be deemed to

be decisions on the merits . . . unless there is a citation to authority or other

statement that clearly shows that the issue was considered by the court on the

1 The Appellate division’s decision in Comprehensive I reversed and remanded
the cause to the trial court for further proceedings consistent with the opinion.

                                         10
merits and relief was denied.”); State, Dep’t of Highway Safety & Motor Vehicles

v. Trauth, 

(Fla. 3d DCA 2007) (stating that the law of the case

doctrine only applies when certiorari is denied on the merits); cf. Turcotte v. City

of Coconut Creek, 

(Fla. 4th DCA 2012) (finding that res judicata

barred appeal where prior order of court denying petition for writ of certiorari

clearly showed that same issue raised on appeal was considered by the court on the

merits and denied).

      Specifically, this Court considered and addressed the reasonableness of

Telusnor’s excuse for her failure to appear in denying Comprehensive’s petition

for certiorari. In reaching its decision to deny certiorari, this Court noted that

“[b]oth sides agree that Telusnor did not appear for the medical exam

appointments because she said that she never received notice of them, and/or her

attorney did not tell her about 

. Based on that, this Court

“conclude[d] that Telusnor's reason for her non-appearance at the medical exam

appointments constituted an unreasonable basis to excuse her non-appearance.” 

considering “the reasonableness of Telusnor’s excuse for her failure

to appear,” this Court addressed why reasonableness was at issue. 

noted that section 627.736(7), Florida Statutes (2009),

             states that if a person unreasonably refuses to submit to a
             medical exam, the PIP carrier is no longer liable for
             subsequent personal injury protection benefits. By using
             the term “unreasonably refuses to submit” in subsection


                                         11
             627.736(7)(b), it is logical to deduce there are scenarios
             where the insured “reasonably refuses to submit” to the
             examination. U.S. Sec. Ins. Co. v. Cimino, 

(Fla. 2000).        Our recent decision in United
             Automobile Insurance Co. v. Gaitan, 

(Fla.
             3d DCA 2010), presents one of those scenarios.
                    In Gaitan, unlike here, there was a reasonable basis
             that excused non-attendance at a medical exam. This
             Court held in Gaitan that the circuit appellate court did
             not misapply the law when it remanded the issue of
             reasonableness of claimant's refusal to attend the medical
             exam on the basis that the claimant had never been
             treated by a chiropractor. 

Telusnor's basis for
             her non-attendance is entirely different.

Court stated that “notice to the attorney constitutes notice to the

client,” 

and “[w]hen a claimant is represented by counsel and counsel

received valid notice via certified mail, it is not a reasonable excuse for non-

attendance.” 

      Given this, the trial court on remand had no discretion to deny United’s

Cross-Motion for Summary Judgment which was based on the unreasonableness of

Telusnor’s failure to attend the IMEs.2 The appellate division was similarly bound

by this Court’s opinion in Comprehensive I, as well as by its own3 prior
2 See Torres v. Jones, 

, 894 (Fla. 3d DCA 1995) (“[I]t was error for

the trial court to modify the final judgment on remand, and to change the law of the
case as determined by the highest court hearing the case.”); Wilcox v. Hotelerama
Assocs., Ltd., 

, 446 (Fla. 3d DCA 1993) (“A trial court does not
have discretionary power to alter or modify the mandate of an appellate court in
any way, shape, or form.”); Hessen v. Metro. Dade Cnty., 

(Fla. 3d
DCA 1990) (granting motion to enforce mandate where trial court’s class
certification on remand altered this Court’s determination regarding the class
representative in first appeal).


                                         12
determination on the issue of “reasonableness.”4 Accordingly, we find that the

appellate division’s decision before us failed to apply the correct law when it failed

to follow the law of the case as established in Comprehensive I. See 

(“The doctrine of the law of the case requires that questions of law

actually decided on appeal must govern the case in the same court . . . through all

subsequent stages of the proceedings.”); see also 

(holding that circuit court failed to apply the correct law when it failed to enforce

its prior decision after this Court issued a denial of certiorari review in

Morningside Civic Ass’n v. Dougherty, 

(Fla. 3d DCA 2006)

(table)).

       Comprehensive, however, asserts that this Court should deny certiorari

because the circuit court properly recognized that the intervening Supreme Court

of Florida case of Custer “requires United to prove its affirmative defense [of

unreasonable refusal] in this case.” While an intervening decision by a higher

court is indeed one of the rare situations in which the highest court hearing a case

will consider a request to modify the law of the case in order to prevent a “manifest

3 It is irrelevant – despite the suggestion of the appellate division panel in
Comprehensive II – that different appellate division panels of the circuit court
heard and ruled on Comprehensive I and Comprehensive II.
4 If the appellate division had wished to change the law of the case established by
its prior decision – and if this Court had not issued an elaborated opinion in
Comprehensive I, the appellate division would still have had to follow the high
standards set by McGregor and Strazzulla as 

.

                                         13
injustice,” Comprehensive is incorrect that Custer constituted an intervening

decision that required the appellate division to disregard the law of the case. See

; accord 

(“Another clear

example of a case in which an exception to the general rule should be made results

from an intervening decision by a higher court contrary to the decision reached on

the former appeal, the correction of the error making unnecessary an appeal to the

higher court.”).

      In Custer, United moved for a directed verdict without having presented any

evidence on its affirmative defense that the claimant’s failure to attend a medical

examination was unreasonable as a matter of law under section 627.736(7).

Custer, 

at 1090. The trial court granted United’s motion, partly on the

basis that the claimant’s failure to appear for examination without excuse or

objection to the notices constituted an unreasonable refusal. 

division of the circuit court reversed, holding that “in the absence of evidence

supporting the affirmative defense, the directed verdict is premature.” 

This Court subsequently granted United’s petition for certiorari, quashed the circuit

court’s reversal, and remanded with instructions to reinstate the directed verdict in

favor of United.

      In reaching its conclusion, the Supreme Court held that United “was

required to present evidence to the fact-finder that [the claimant] unreasonably



                                         14
failed to attend a medical examination without explanation after having received

proper notice.” 

(emphasis in original). The Supreme Court noted that

the trier of fact was not presented with affirmative evidence that the claimant

actually received notice of the scheduled medical examinations or that any failure

was unreasonable. 

Court also stated that “United had the burden

of demonstrating the absence of any material issue of fact,” 

and that

the “directed verdict was premature because United had not demonstrated the

absence of any material issue of fact for the jury” regarding the reasonableness of

the failure to attend. 

      It is undisputed that United raised the issue of unreasonableness in this case;

Custer requires that United present affirmative evidence that Telusnor

unreasonably failed to attend the IMEs without explanation after having received

notice and not rely on the mere fact of non-attendance. At the initial proceedings

before the trial court that gave rise to Comprehensive I, it was undisputed that

Telusnor gave no excuse or explanation for her non-attendance.          United then

presented undisputed evidence that notices of the IMEs were sent to both Telusnor

and her attorney, that service was made by certified mail on her attorney, and that

notice on the attorney constituted proper notice on Telusnor. Perhaps presciently

anticipating Custer’s future ruling, the appellate division in Comprehensive I

found that proper notice had in fact been received and that, based on the



                                         15
undisputed facts in the record, Telusnor had unreasonably failed as a matter of law

to attend the IMEs. This finding is consistent with Custer’s subsequent holding

that the insurer bear the burden of presenting actual evidence to show unreasonable

non-attendance after receipt of proper notice. Put another way, United satisfied its

evidentiary burden on its affirmative defense, whether analyzed pre- or post-

Custer.

      Unlike Custer, in which this Court erroneously affirmed the grant of a

directed verdict in favor of a defendant where there was a complete absence of

evidence in support of the defendant’s affirmative defense, in Comprehensive I,

there was not a complete absence of evidence, but rather, a determination by the

appellate division (on undisputed facts) that United’s evidentiary presentation

demonstrated the absence of any material issue of fact concerning the

“unreasonable refusal” issue.     Additionally, this Court in Comprehensive I

concluded that this was not a departure from the essential requirements of the law.

For these reasons, Custer does not modify the law of the case as established in

Comprehensive I.

      Finally, United also seeks a writ of certiorari to quash a separate order of the

appellate division denying its motion for appellate attorney’s fees. In its appeal to

the circuit court below, United filed a Motion for Attorney’s Fees Based on a

Rejected Offer of Judgment. United stated that it served Comprehensive with a



                                         16
proposal for settlement which was not accepted within thirty days, and that if it

prevailed on appeal it was entitled to an award of appellate attorney’s fees pursuant

to the offer of judgment statute, section 768.79. The circuit court sitting in its

appellate capacity reversed the final judgment entered in favor of Comprehensive,

and in a separate order denied United’s motion for appellate attorney’s fees. In

denying United’s motion for appellate attorney’s fees, the circuit court failed to

apply the correct law resulting in a miscarriage of justice.

      It is well settled that “[t]he plain and mandatory terms of the proposal for

settlement statute encompass all costs and attorney’s fees incurred leading up to a

final judgment,” including fees incurred on appeal. State Farm Fire & Cas. Co. v.

Rembrandt Mobile Diagnostics, Inc., 

, 1162 (Fla. 4th DCA 2012);

accord Motter Roofing, Inc. v. Leibowitz, 

, 789 (Fla. 3d DCA 2002)

(“This Court, along with all district courts in Florida, has ruled that Section 768.79

also applies to fees incurred on appeal. . . . Thus, the circuit court, sitting in its

appellate capacity, departed from the essential requirements of law by denying the

petitioner's request for appellate attorney's fees.”) (internal citations omitted).

This Court has previously held that “section 768.79 creates an independent,

substantive, and statutory basis for the award of attorney’s fees when the

requirements of the statute have been met.” United Auto. Ins. Co. v. Virga, 

, 1289-90 (Fla. 3d DCA 2013) (quoting DuPont Builders, Inc. v.



                                          17
Baker, 

, 147 (Fla. 2d DCA 2008)).              Moreover, it has been

established that the failure of the circuit court to grant an award of appellate fees,

conditioned upon meeting the terms of the offer of judgment statute, in a scenario

similar to the instant one is a departure from the essential requirements of the law.

See 

.

      Accordingly, the circuit court sitting in its appellate capacity should have

conditionally granted United’s motion for appellate attorney’s fees incurred in

successfully obtaining a reversal of the final judgment entered in favor of

Comprehensive.      The failure to do so was a departure from the essential

requirements of the law. We therefore grant the petition for writ of certiorari, and

quash the circuit court’s order denying United’s motion for appellate attorney’s

fees under the offer of judgment statute. If the terms of the offer of judgment

statute are ultimately satisfied, United will be entitled to recover its appellate

attorney’s fees.

IV.   CONCLUSION

      Because the appellate division’s failure to apply the correct law, as

established in Comprehensive I, constitutes a departure from the essential

requirements of the law, see 

, we grant United’s

petition for certiorari and quash the circuit court’s appellate decision remanding for

a trial on the issue of reasonableness.



                                          18
      We also quash the circuit court’s order denying United’s motion for

appellate attorney’s fees under the offer of judgment statute. If the terms of the

offer of judgment statute are ultimately satisfied, United will be entitled to recover

its appellate attorney’s fees.

      Petition granted; decision quashed and order quashed.




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