Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

August 24, 2018 by Jennifer Kennedy

Appeals — Non-final orders — Insurance — Homeowners — Water damage — Appraisal — Circuit court acting in its appellate capacity did not depart from essential requirements of law in dismissing for lack of jurisdiction an appeal of county court non-final order compelling appraisal and staying proceedings — No merit to contention that the county court order was a final order entitling opposing party to a direct appeal

43 Fla. L. Weekly D1929a

Appeals — Non-final orders — Insurance — Homeowners — Water damage — Appraisal — Circuit court acting in its appellate capacity did not depart from essential requirements of law in dismissing for lack of jurisdiction an appeal of county court non-final order compelling appraisal and staying proceedings — No merit to contention that the county court order was a final order entitling opposing party to a direct appeal

911 DRY SOLUTIONS, INC., etc., Petitioner, v. FLORIDA FAMILY INSURANCE COMPANY, Respondent. 3rd District. Case No. 3D18-487. L.T. Case Nos. 17-306 & 17-5823. August 22, 2018. On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Jacqueline Hogan Scola, Angelica D. Zayas, and Maria Elena Verde, Judges. Counsel: Font & Nelson, PLLC, and Jose P. Font and Adam Friedman (Fort Lauderdale), for petitioner. Butler Weihmuller Katz Craig LLP, and Anthony J. Russo and Mihaela Cabulea (Tampa), for respondent.

(Before ROTHENBERG, C.J., and LAGOA and LOGUE, JJ.)

(LAGOA, J.) Petitioner, 911 Dry Solutions, Inc. (“Petitioner”), seeks a writ of certiorari to quash the order of the Circuit Court Appellate Division granting Respondent, Florida Family Insurance Company’s (“Respondent”), motion to dismiss the appeal for lack of jurisdiction. We deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Juliet Elliston and Andrew Elliston (the “Insureds”) purchased an insurance policy from Respondent for coverage on a property located in Miami. After the Insureds’ property sustained a covered loss as a result of water damage, the Insureds contracted with Petitioner to provide water restoration services to attempt to mitigate damages, and assigned to Petitioner all insurance rights, benefits, and proceeds under the policy. After completing its work, Petitioner submitted to Respondent an invoice totaling $9,529.27 for services rendered. Respondent then secured a comparative estimate of the invoice valued at $2,484.42. Respondent paid the undisputed amount of $2,484.42 and demanded appraisal from both Petitioner and the Insureds to resolve the difference.

Petitioner subsequently filed an action against Respondent in county court, seeking a declaration that it was not subject to the policy’s appraisal provision. Respondent filed a Motion to Dismiss or, in the Alternative, Motion to Compel Appraisal and Stay Proceedings. The county court compelled appraisal and stayed the proceedings pending the appraisal’s completion. Petitioner appealed the county court’s order to the Circuit Court Appellate Division. In response, Respondent moved to dismiss the appeal for lack of jurisdiction. The Appellate Division granted that motion without prejudice “until such time as an appealable order had been entered.” This timely petition followed.

II. STANDARD OF REVIEW

“The standard governing the disposition of a petition for second-tier certiorari in a district court is narrow: ‘[T]he district court must determine whether the decision of the circuit court . . . is a departure from the essential requirements of law resulting in a miscarriage of justice.’ ” A district court’s analysis of whether a circuit court’s decision constitutes a departure from the essential requirements of the law is limited to whether the parties were afforded procedural due process and whether the circuit court applied the correct law.

DMB Inv. Tr. v. Islamorada, Village of Islands, 225 So. 3d 312, 316 (Fla. 3d DCA 2017) (alteration in original) (citations omitted) (quoting Dep’t of Highway Safety & Motor Vehicles v. Fernandez, 114 So. 3d 266, 269-70 (Fla. 3d DCA 2013)).

III. ANALYSIS

On appeal, Petitioner argues that the circuit court departed from the essential requirements of the law in dismissing its appeal for lack of jurisdiction. Petitioner raises two arguments. First, Petitioner argues that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) permits an immediate appeal of a county court’s non-final order determining a right to appraisal. Second, Petitioner argues, in the alternative, that the county court’s order was a final order entitling Petitioner to an immediate appeal. We find both arguments without merit and address each argument separately.

With regard to the first argument, Florida Rule of Appellate Procedure 9.130 governs review of non-final orders and specified final orders. Rule 9.130(a)(1) provides that “[t]his rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law.” (emphasis added). Rule 9.130(a)(3) applies only to “[a]ppeals to the district courts of appeal of non-final orders.” In 2000, the Florida Supreme Court amended rule 9.130 “to reflect that the appellate jurisdiction of circuit courts is prescribed by general law and not by this rule, as clarified in Blore v. Fierro, 636 So. 2d 1329 (Fla. 1994).” See Amendments to Fla. Rules of Appellate Procedure, 780 So. 2d 834, 863 (Fla. 2000). In Blore, the Florida Supreme Court stated:

It is important to note that, while this Court is given exclusive rule making authority over interlocutory appeals to the district courts of appeal, the Constitution does not provide this Court with such authority for appeals from the county court to the circuit court. The authority for appeals to the circuit court is established solely by general law as enacted by the legislature.

636 So. 2d at 1331 (emphasis in original). In the instant case, the county court order compelled appraisal and stayed the proceedings. The Florida Legislature has not enacted a statute authorizing the circuit court to hear an appeal of such an order from the county court.1 Because the cases Petitioner relies upon involve either an earlier version of Rule 9.130 or a direct appeal from a circuit court to a district court, we find those cases inapplicable.

Petitioner alternatively argues that the county court order is a final order, entitling it to a direct appeal. An order granting appraisal, however, is generally recognized as a non-final order. See, e.g., Fla. Ins. Guar. v. Sill, 154 So. 3d 422, 423 (Fla. 5th DCA 2014). Petitioner nonetheless contends that the county court’s order ended all judicial labor. A reading of that order, however, shows that the county court did not grant Respondent’s motion to dismiss, but rather ordered an appraisal and stayed the underlying declaratory judgment proceedings pending completion of the appraisal.

Accordingly, because the Circuit Court Appellate Division applied the correct law and Petitioner does not dispute that it was afforded procedural due process by the Circuit Court Appellate Division, we deny the petition for certiorari.

Petition denied.

__________________

1In contrast, Rule 9.130(a)(3)(C)(iv) authorizes a district court of appeal to hear an appeal from a circuit court’s non-final order that determines “the entitlement of a party . . . to an appraisal under an insurance policy.”

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982