RX IMAGING OF SWFL, LLC

v.

IRVING RADIOLOGY, INC.

SMITH, J.

RX Imaging of SWFL, LLC (“RX Imaging”) appeals the final judgment entered in favor of Irving Radiology, Inc. (“Irving”), the order granting in part and denying in part the parties’ respective motions for summary judgment and an order denying reconsideration of the same, and the order granting attorney’s fees to Irving.¹ We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A).

Background While much could be said about the neighborly unfolding of the business relationship between the two parties, and its ultimate demise, we limit our factual and procedural recitation to what is necessary to our analysis. Irving is a professional radiology services provider owned and operated by Dr. Winston Irving (“Dr. Irving”).

RX Imaging is a diagnostic imaging company. A written contract was entered into and signed by both parties where RX Imaging would perform diagnostic imaging and Irving would perform the interpretations and reports. The contract specified the dollar amount per MRI which RX Imaging would bill Irving, and the contract further provided that Irving would handle the global billing for both the imaging services and professional interpretation fee. The written contract specified Irving would be accepting patients of Dr. Jeffrey Peck or any other doctors of Specific Care Chiropractic (“Peck cases”).

At some point after Irving and RX Imaging began operating pursuant to the written agreement, RX Imaging began sending cases to Irving from providers other than Dr. Peck and Specific Care Chiropractic which also included images other than

MRIs (“non-Peck cases”). It is without dispute the parties did not modify their agreement in writing to accept these variant cases, however neither party contends modifications needed to be in writing. The business relationship eventually broke down, and RX Imaging filed the present suit for Irving’s alleged failure to pay. RX Imaging asserted several theories of relief including breach of contract, unjust enrichment, open account, and account stated. The parties ultimately filed competing motions for summary judgment.

The trial court granted summary judgment on the central issue addressed in this appeal, which is whether the written contract between the parties had been modified to encompass non-Peck cases.

The trial court, via detailed written order, granted partial summary judgment in favor of Irving on this question, finding there was no modification of the agreement to accept the non-Peck cases.

The trial court also granted partial summary judgment in favor of RX Imaging for breach of contract related to Peck cases only (which was not appealed) and granted partial summary judgment in favor of Irving on the remaining counts for unjust enrichment, open account, and account stated. Because the court found the non-Peck cases were not included in the contract, the court limited the trial to damages on RX Imaging’s claims involving Peck cases. RX Imaging was unable to effectively produce evidence at trial which separated Peck from non-Peck cases, and, therefore, lost its damages case as well.

Analysis

As this Court has recently stated, Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “A genuine dispute of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Perez v. Citizens Prop. Ins. Corp., 345 So. 3d 893, 895 (Fla. 4th DCA 2022) (quoting In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021)). In determining whether a genuine dispute of material fact exists, the Court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party and must resolve any reasonable doubts in the non-moving party's favor. Skop v. City of Atlanta, 485 F. 3d 1130, 1136 (11th Cir. 2007). Summary judgment should only be granted “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The ruling on a motion for summary judgment is subject to a de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

Smith v. Babcock, 48 Fla.

L. Weekly D1281, D1282 (Fla. 6th DCA June 23, 2023). • Breach of Contract Neither party disputes the general premise that a written contract may be modified by subsequent oral agreement or the parties’ course of dealings. See St. Joe Corp. v. McIver, 875 So. 2d 375, 382 (Fla. 2004) (“Whether the parties have validly modified a contract is usually a question of fact.”); Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So. 2d 838, 841 (Fla. 3d DCA 1998) (“Whether a written contract has been modified by subsequent oral agreement or by course of dealing is a question of fact for the jury.”).

In the context of this case, whether a modification has occurred is a question of fact. See 875 So. 2d at 382; 723 So. 2d at 841. In its order on the parties’ cross summary judgment motions, the trial court made the following findings: There is no evidence that the Parties each indisputably consented to expand the Agreement to radiology services rendered to patients originating from providers other than Peck or to studies other than MRIs. … The Court finds that the foregoing facts make it clear that Irving did not consent to expand the Agreement to cover non-Peck cases. Irving's expressed dissatisfaction with the operation of the Agreement as applied to Peck cases, efforts to modify the terms of the Agreement, and inability or refusal to pay RX consistent with the terms of the Agreement for those cases prove that Irving did not voluntarily elect to expand the Agreement to non-Peck cases. RX's only argument on this point is that it billed Irving for non-Peck cases and Irving made partial payment on those invoices without raising specific objections to the exact services included on the relevant invoices.

(Emphasis added). The trial court’s order fails to address two factual points, which drives our decision to reverse.

First, the manager for RX Imaging, David Courson, testified in his deposition that Dr. Irving, by phone conversation, expressly agreed to accept non-Peck cases. In fact, Mr. Courson stated that Dr. Irving had requested RX Imaging take the cases and that the non-Peck cases came from referrals made by Dr. Irving. While Dr. Irving denied directly referring the non-Peck physicians to RX Imaging, Dr. Irving admitted he knew both non-Peck physicians and that he told those physicians positive things about how RX Imaging was handling matters for him.

Second, Irving paid RX Imaging for non-Peck cases and Irving also collected for non-Peck cases. The unrefuted testimony before the trial court at the time it considered the summary judgment motions was that 115 non-Peck cases had been submitted to Irving, and Irving had collected on all but 22 of them.

These facts, in addition to the others considered by the trial court, when viewed in a light most favorable to RX Imaging, do not support a conclusion at the summary judgment stage that there was no modification of the contract to accept non-Peck cases.

Accordingly, we reverse the trial court’s granting of summary judgment for Irving on the breach of contract claim as it pertains to non-Peck cases. • Unjust Enrichment, Open Account, and Account Stated In reviewing the trial court’s order granting summary judgment in favor of Irving on these remaining counts, each of the rulings were based, in whole or in part, on the court’s finding that there was no agreement between the parties relative to non-Peck cases. For the same reasons discussed above, we reverse the trial court on these claims as well.

• Attorney’s Fees

As a result of its order granting summary judgment, the lower court granted fees in favor of Irving. Due to our reversal of the lower court, the fee award is also reversed subject to future consideration by the court depending on the final outcome of the case. • Evidentiary Ruling As this entire matter will need to be retried in accordance with our ruling, the evidentiary issue raised on appeal need not be addressed at this time. REVERSED and REMANDED with instructions.

TRAVER, C.J., and MIZE, J., concur. Joseph E. Parrish and Robert H. Goodman, of Parrish & Goodman, PLLC, Fort Myers, for Appellant.

Robert R. Hearn and Daniella R. Lee, of Epstein Becker & Green, P.C., St. Petersburg, for Appellee.