18 Fla. L. Weekly Supp. 21b
Online Reference: FLWSUPP 1801BLAN
Insurance — Personal injury protection — Appeals — Appellate court can and must address issue of its jurisdiction at any time — Order granting medical provider’s motion for partial summary judgment on defense of failure to attend examination under oath, without entry of final summary judgment or ending trial court’s judicial labors in case, is not appealable final order — Circuit court lacks jurisdiction to treat appeal of order as petition for writ of common law certiorari — Even if court had statutorily authorized certiorari review jurisdiction, it does not choose to exercise that discretion in this case where insurer has failed to demonstrate that it lacks adequate remedy by appeal if it suffers adverse final judgment — Certiorari also will not lie to review order denying insurer’s motion for summary judgment on EUO no show issue — Appellate attorney’s fees awarded
GEICO INDEMNITY COMPANY, Appellant, v. HEALTH USA CORP., a/a/o NATALY BLANCO, and SERGIO GIL, Appellee(s). Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 10-125 AP, 10-126 AP (Consolidated). L.C. Case No. 09-02525-SP-26, 09-02533-SP-26. October 14, 2010. An appeal from the decision rendered by the Miami-Dade County Court, Gloria Gonzalez-Meyer, Judge. Counsel: Jose Pagan, and Neil V. Singh, for Appellant. Juan C. Montes, for Appellee.
(Before FIRTEL, LEBAN, and CYNAMON, JJ.)
ORDER GRANTING MOTION TO DISMISS APPEAL AND ALTERNATIVE PETITION FOR WRIT OF COMMONLAW CERTORARI, AND GRANTING MOTION FORAPPELLATE ATTORNEYS’ FEES
I. INTRODUCTION
(LEBAN, Judge.) Nataly Blanco and Sergio Gil, hereinafter, the insured, were involved in an automobile accident on August 14, 2008, allegedly sustaining personal injuries for which they sought medical treatment and incurred expenses from Health USA, to whom they later assigned their benefits. The insured received medical services between September 1, 2008, and November 3, 2008. Their insurance policy, which coincidentally went into effect on the same date of the accident, August 14, 2008, contains a provision requiring that individuals requesting benefits attend an examination under oath (EUO), which the insurance company, hereinafter Appellant or GEICO, by appropriate letter, duly requested they attend (giving two alternative dates) prior to the expiration of 30 days following receipt of the medical bills here at issue. The insured failed to appear for their EUO’s on either date. Upon this failure GEICO considered that they had breached its policy conditions and denied payment of personal injury protection (PIP) benefits to the assignee HEALTH USA, hereinafter Appellee.
Appellee filed its lawsuit alleging that the insured had “performed all conditions precedent to entitle them to recover benefits. . .”. Complaint at ¶ 11. GEICO thereafter filed its answer and numerous affirmative defenses claiming, inter alia, that the insureds’ failure to attend their EUO’s constituted a breach of the terms and conditions of the policy. Appellee did not contest that the policy contained the EUO condition, but, as Appellant asserts, Appellee argues as a pure matter of law that since the No-Fault Statute does not expressly grant a company the right to obtain an EUO as a condition precedent to coverage, the EUO requirement should be treated as a condition subsequent. See Initial Brief at page 9. Ultimately, as in most PIP litigation, the parties filed motions for partial summary judgment and/or final summary judgment: Appellee, on November 18, 2009, filed its MOTION FOR PARTIAL SUMMARY JUDGMENT and, on February 19, 2010, GEICO filed its OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS MOTION FOR FINAL SUMMARY JUDGMENT. The sole issue raised in these motions pertains to the insureds’ failure to attend the scheduled EUOs. A hearing was held on the opposing summary judgment motions before the Honorable Gloria Gonzalez-Meyer on March 9, 2010, and, on that date, the trial judge entered the following order which states in pertinent part:
THIS CAUSE came before the Court on the 9th day of March, 2010 on Plaintiff’s . . . Motion for Partial Summary Judgment and Applicable Law as to EUO Condition Subsequent and after hearing argument of counsel, it is
ORDERED AND ADJUDGED:
GRANTED. Court rules that the EUO requirement is a condition subsequent within the context of PIP Benefits. The issue of EUO No Show shall be a question for jury. Defendant’s Motion for Final Summary Judgment is DENIED. [Emphasis added].
R1. 76; R2. 153.
On March 31, 2010, GEICO filed the first of two documents, entitled: “DEFENDANT’S NOTICE OF APPEAL.” This document identifies the order being appealed from as the “Order Granting Plaintiff’s Motion for Partial Summary Judgment and Applicable Law as to EUO Condition Subsequent. . .”. This March 31, 2010, NOTICE OF APPEAL purports to rely upon “Rule 9.130, Florida Rules of Appellate Procedure.”
On April 7, 2010, GEICO filed its second document entitled “DEFENDANT’S AMENDED NOTICE OF APPEAL.” This document identifies the same March 9, 2010, order, but sets forth alternative grounds, asserting that said AMENDED NOTICE OF APPEAL is based “alternatively: 1) pursuant to Rule 9.130, Florida Rules of Appellate Procedure; 2) pursuant to Rule 9.110(m), Florida Rules of Appellate Procedure; or 3) as a petition for common law certiorari.” This second document identifies the order to which it is directed as “an order granting Plaintiff’s Motion for Partial Summary Judgment and Applicable Law as to EUO Condition Subsequent and Denying Defendant’s Motion for Summary Judgment. . .”.1
GEICO filed its Initial Brief on or about June 15, 2010. After seeking motions for extensions of time within which to file its Answer Brief, Appellee, on August 27, 2010, filed its MOTION TO DISMISS APPEAL & MOTION FOR ATTORNEYS’ FEES. Said motion is addressed to both GEICO’S appeal and alternative certiorari proceeding. On or about September 1, 2010, GEICO filed its OBJECTION TO APPELLEE’S MOTION TO DISMISS APPEAL & MOTION FOR ATTORNEYS’ FEES.2 This Court on the same date that GEICO’S September 1, 2010, OBJECTION was filed, issued an order requiring GEICO to respond to the jurisdictional issues raised in Appellee’s MOTION TO DISMISS. Thereafter, on September 10, 2010, GEICO filed its second RESPONSE as well as a MEMORANDUM OF LAW IN SUPPORT OF OPPOSITION TO APPELLEE’S MOTION TO DISMISS, this time citing to Rules of Appellate Procedure, statutory and decisional law. On September 9, 2010 (obviously not having received GEICO’S Court-ordered RESPONSE), Appellant filed a REPLY to GEICO’S OBJECTION.
In view of the substantial jurisdictional issues raised in this proceeding, this Court deems it necessary to issue this comprehensive opinion. In doing so, the Court does not address the substantive “EUO No Show” issue for the reasons set forth herein.
II. JURISDICTION CAN BE CHALLENGEDAT ANY TIME
In view of the Appellee’s initial OBJECTION to Appellant’s dismissal motion, which essentially asserts that Appellee should not have waited “until the eleventh hour. . . to subvert this Court’s review of the merits,” see OBJECTION at ¶10, the Court will first address the issue of when an appellate court can reach the issue of its own jurisdiction. The answer lies in such basic hornbook law as Florida Jurisprudence:
[A]n appellate court may . . .question. . .its own jurisdiction such as the appealability of the judgment from which an appeal is taken despite the failure of the parties to object thereto. . .or fail[ure] to assert in appellate briefs or argument the appellate court’s lack of jurisdiction to hear the appeal. 3 Fla. Jur 2d Appellate Review, § 30.
The Third District more fully expounded on why this is so when it held:
The jurisdiction of a court is of primary consideration. It is a question that can be raised at any time by any interested party or by the court, because jurisdiction derives only from constitutional or statutory authority or in consequence of fundamental common-law principles. Lovett v. City of Jacksonville Beach, 187 So.2d 96, 99 (Fla. 1st DCA 1966). Thus, jurisdiction “cannot be conferred by stipulation or endowed by action of the court.” Id. [Emphasis added].
Crapp v. Criminal Justice Standards and Training Com’n, 753 So.2d 787, 787 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D822f].
See also, Bramblett v. State, 15 So.3d 839, 840 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1505a]. Thus, Appellee did not wait “until the eleventh hour,” and, indeed, this Court can and must address its jurisdiction “at any time.”
III. AN ORDER MERELY GRANTING PARTIALSUMMARY JUDGMENT IS NOT A FINAL APPEALABLE ORDER
As set forth above, the order under review in the case at bar does no more than grant Appellee’s Motion for Partial Summary Judgment on the EUO No Show issue. It does NOT end judicial labor in the proceedings below, and is therefore not a final, appealable order. As recently and accurately stated in “Jumping the Gun: Premature Appeals In Civil Cases,” Bretton C. Albrecht, 84 March, 2010, Florida Bar Journal 42:Orders Granting Motions for Summary Judgment
Summary judgment is often accomplished through the entry of two sequential orders, an order granting the motion and a subsequent final judgment. It may also be accomplished by a single order. The finality of a summary judgment does not depend on whether it is achieved through one order or two. It depends, instead, on the nature and effect of the order as determined from the language employed. If the order finally resolves all claims between the parties pending in the action by entering judgment in favor of one side and against the other, the order is final and must be appealed within 30 days of rendition. The substance of the order, not the title, is controlling in this respect. No specific magic words are required, but the order must contain unequivocal language of finality that ends the judicial labor in the case in order to be immediately appealable. An order lacking hallmarks of finality that merely grants a motion for summary judgment is not final and not appealable. Such an order can only be challenged in an appeal of a subsequent final judgment. This is because an order granting summary judgment does not actually enter judgment for or against any party; rather, it establishes only an entitlement to judgment. [Emphasis added; footnotes omitted].
As the author aptly concludes:
To obtain an order that meets the test of finality, one must . . . be able to distinguish between a final summary judgment . . . and an interlocutory order that merely grants a motion.
To illustrate, the Third District dismissed as premature and unappealable an appeal from a non-final order in Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10, 11 (Fla. 3d DCA 1980) (“An order denying or granting a motion for summary judgment is not an appealable final order”).
Indeed, the cases dismissing as non-final, appeals from orders merely granting summary judgment are both legion and vintage. See, e.g., Shupack v. Allstate Ins.Co., 356 So.2d 1298, 1299 (Fla. 3d DCA 1978) (“This order [granting motion for summary judgment] is merely authorization for a final judgment. It does not constitute a final judgment, nor is it an order from which an interlocutory appeal could properly lie. See Harris v. Mosteller, 253 So.2d 275 (Fla. 2d DCA 1971); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965); Lyden v. DePiera, 147 So.2d 573 (Fla. 3d DCA 1962); Stone v. Buckley, 119 So.2d 298 (Fla. 2d DCA 1960); Chastain v. Embry, 118 So.2d 33 (Fla. 2d DCA 1960); Elliott v. Lazar, 104 So.2d 618 (Fla. 2d DCA 1958); and Renard v. Kirkeby Hotels, 99 So.2d 719 (Fla. 3d DCA 1958).”).
Appellant, as will be discussed, infra, appears itself to recognize this Court’s lack of jurisdiction over the non final order entered below. Both parties cite to the Florida Supreme Court’s decision discussing the jurisdiction of the county courts in Blore v. Fierro, 636 So.2d 1329 (Fla. 1994); however, each party derives a different meaning from Blore. Both parties recognize Blore’s holding that the Circuit Appellate Court’s jurisdiction “is established solely by general law as enacted by the legislature,” id. at 1330, and both cite to section 26.012(1), Florida Statutes, which provides that “Circuit courts shall have jurisdiction of appeals from county courts. . .”. However, Appellant contends that this “general law does not distinguish between final and non-final orders from the County Courts when determining the appellate jurisdiction of the Circuit Court.” See APPELLANT’S RESPONSE at page 3 [emphasis omitted]. Appellant would interpret this legislative conferring of jurisdiction broadly to mean that “all ‘appeals’ are within the authorized jurisdiction of the Circuit Courts.” Id. Nevertheless, there is simply no authority to support such a generalized construction of section 26.012(1), Florida Statutes, and we flatly reject that all-encompassing construction.
Instead, as correctly observed by Appellee in its motion to dismiss, the Florida Supreme Court held in Blore v. Fierro, supra, at 1332:
[W]hile this Court is given exclusive rulemaking 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. ***[A]rticle V, section 5, of the Florida Constitution gives the legislature the exclusive authority to provide for the manner of appeals from the county court to the circuit court.
Thus, even if Rule 9.130, Fla. R. App. P., can be said to have authorized a civil appeal from a non-final partial summary judgment order, as in the case at bar, that Supreme Court rule of procedure could not be deemed to authorize, or confer jurisdiction over, an appeal from the county court to this circuit court acting in its appellate capacity. Rather, only the legislature can authorize by general law such an appeal and, despite Appellant’s unsupported claim to the contrary, as will be demonstrated, it has NOT done so.3
By way of recent example, the Fourth District recognized the Blore holding that the Supreme Court cannot confer non-final appellate jurisdiction by rule, and that only the legislature may confer such jurisdiction, but has not done so, in Shell v. Foulkes, 19 So.3d 438, 440 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2039a]. Shell expressly and bindingly held:
The Circuit Court exceeded its appellate jurisdiction. An order merely entering a default without a consequent final judgment is not a final order. The Circuit Courts do not have any general jurisdiction under the appellate rules to review non-final orders-such as the entry of a default without a final judgment. As for general law, nothing in Chapter[ ] 26[.012], Florida Statutes, purports to give Circuit Courts appellate jurisdiction to review non-final orders.*** The Circuit Court should have dismissed the appeals for lack of appellate jurisdiction. [Footnotes omitted; emphasis added].
Like a “non-final order merely entering a default,” id. at 440, an order, as entered in the case at bar, partially granting summary judgment, without entry of a final summary judgment, or ending the county court’s judicial labors in the case, is simply not appealable to the circuit court acting in its appellate capacity. Thus, Appellant’s broad assertion in the case at bar that section 26.012, Florida Statutes, may be read to confer jurisdiction over the non-final partial summary judgment order in the case at bar is rejected pursuant to the Fourth District’s controlling decision in Shell v. Foulkes, supra.
Accordingly, as this Court lacks jurisdiction over the order herein sought to be appealed, we grant Appellee’s motion to dismiss the appeal.
IV. FIRST TIER CERTIORARI REVIEW JURISDICTIONOF THE CIRCUIT APPELLATE COURTS
Having found that we lack jurisdiction to review the non-final, non-appealable order of the county court in the case at bar, we next examine whether this Court, sitting in its appellate capacity, even has jurisdiction to entertain what Appellant, in essence, seeks as an alternative to such non-existent direct review, namely a petition for FIRST tier certiorari review of a non final, non appealable order of a county court, as opposed to an agency or administrative order. The answer comes from several controlling decisions, not the least of which is the Florida Supreme Court’s oft-cited decision in Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995) [20 Fla. L. Weekly S318a], where the Court observed:
[C]ertiorari in circuit court to review local administrative action under Florida Rule of Appellate Procedure 9.030(c)(3) is not truly discretionary common-law certiorari, because th[at] review is of right. [Citations omitted]. In other words, in such review the circuit court functions as an appellate court.
The Haines Court had earlier noted in the same decision, that it would “not discuss other possible uses of certiorari such as [the circuit appellate court’s] use to review interlocutory or non-final orders of a lower court . .” id. at 525 n.1, and further noted that even the Supreme Court itself, under the Florida Constitution, did not have “any general power to issue common law writs of certiorari.” Id. at 525, n.2.
After searching our Constitution, hundreds of decisions and the only relevant statute conferring review jurisdiction of any kind on the circuit courts, § 26.012, Fla. Stat., we now must conclude that we lack such “first tier” certiorari review jurisdiction as Appellant presciently urged us to exercise when it filed its “AMENDED NOTICE OF APPEAL.” In reaching this conclusion, we find support, if not outright binding authority, in a post Haines Florida Supreme Court case and two Third District cases which we now discuss.
In the Supreme Court opinion upon which we rely, the Court observed that the circuit appellate courts’ “first tier” certiorari review is limited to administrative review which, the Court said, is more in the nature of appellate review. Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000) [25 Fla. L. Weekly S461a], expressly said “a party may seek certiorari review in circuit court, i.e., ‘first-tier’ certiorari review. Although termed ‘certiorari’ review, review at this level is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal.” [Emphasis added]. More recently, and entirely consistent with FPL, supra, the Third District said it appears that in the few instances where the appellate division of a circuit court exercises “first tier” review of a county court judgment, as opposed to an agency action, it “is conducting first-tier appellate review,” not certiorari review. See, AA Acquisitions, LLC v. Opa-Locka Flightline, LLC, 23 So.3d 777, 778 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2460d]. [Emphasis added]. See also, Osborn v. Board of County Com’rs, 937 So.2d 1119, 1120 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1924b], wherein the Third District, also consistent with the rationale of the Supreme Court’s Haines decision, observed that the only “first tier” certiorari review by the circuit court appellate division appears to be limited in nature to review of agency action and in scope, i.e., “whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So.2d 14 (Fla. 3d DCA 2001) [25 Fla. L. Weekly D1838b].”
Thus, since, as discussed earlier, the circuit courts’ appellate review authority derives only from general law, see § 26.012, Fla. Stat.; Blore v. Fierro, supra, 636 So. 2d at 1332; Shell v. Foulkes, supra, 19 So.3d at 440 (“nothing in Chapter[ ] 26[.012], Florida Statutes, purports to give Circuit Courts appellate jurisdiction to review non-final orders), and the first tier certiorari jurisdiction of the circuit appellate courts is “not discretionary but rather . . . is akin . . . to a plenary appeal,” Florida Power & Light co. v. City of Dania, supra, at 1092, we hold that we lack jurisdiction to treat Appellant’s appeal from the county court’s non final, non appealable, order partially denying summary judgment as a petition for writ of common law certiorari, and, accordingly we decline Appellant’s invitation to do so.4
In so holding that circuit appellate courts lack first tier certiorari jurisdiction to review non-final orders of county courts, we, of course, recognize that the Florida Constitution, in Article V, §5(b), delineating the jurisdiction of circuit courts, provides that “[t]he circuit courts shall have. . . the power to issue writs of. . . certiorari. . .”. However, the constitution’s conferring of such jurisdiction does not distinguish between circuit courts acting in their appellate capacity on the one hand, and individual circuit judges doing so on the other. Nor does Article V, §5(b), purport to define the certiorari power it confers therein to review administrative or agency decisions, or to review county court, non-final orders otherwise reviewable upon plenary appeal. Standing alone, Article V, §5(b), might indeed be construed to confer upon circuit appellate divisions the power to issue writs of common-law certiorari to review all county court orders. However, the constitutional provision here at issue does not stand alone: it is tempered by Local Rule R-3-1, which restricts the certiorari power of the circuit court appellate division to 3-judge panels verses single circuit judges acting individually. More importantly for our purposes, the Local Rule, approved by our Supreme Court and adopted in 1982 by a still-valid Administrative Order, AO No. 82-22, distinguishes and defines the types of such review, consistently with the Haines analysis discussed above, as follows:
LOCAL RULE R-3-1
ESTABLISHMENT AND DEFINING JURISDICTION OF THE APPELLATE DIVISION OF THE CIRCUIT COURT.
The Appellate Division of the Circuit Court is hereby established and will be responsible for the disposition of the following matters:
1 Appeals from the County Court Dade County
2 Petitions for writ of certiorari which seek review of a decision of any public body, city or county commission or council, administrative board or agency, or the County Court.
We, along with the Third District, construe this Local Rule as a limitation of the circuit court’s certiorari jurisdiction to review agency-type orders. As observed by the Third District in Oceania Joint Venture v. Ocean View, Ltd., 707 So.2d 917, 919 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D668b]:
That rule, entitled “Establishment and Defining Jurisdiction of the Appellate Division of the Circuit Court,” which was approved by the Supreme Court of Florida on December 14, 1982, reiterates that the appellate division of the circuit court has jurisdiction to entertain certiorari review of decisions of administrative agencies, but goes on to mandate, inter alia, that such cases be heard on their merits by three-judge panels of the appellate division. [Emphasis added].
See also, 2 Fla. Prac., Appellate Practice §7:2 (2010 ed.), Philip J. Padovano (recognizing Local Rules creating 3-judge circuit appellate panels, and citing Oceania Joint Venture, supra). Thus, while Article V, §5(b), Florida Constitution, bestows certiorari jurisdiction on circuit courts, that constitutional provision is limited by Local Rule to circuit court appellate division certiorari review of agency orders.V. Alternative Common Law Certiorari
Notwithstanding the above analysis and our holding, and assuming, arguendo, that we had such first tier common law certiorari jurisdiction, we next address the standards for the exercise of such discretionary jurisdiction and whether we should exercise it under the facts and circumstances of this case. To do so, we must review the cases dealing with second tier certiorari review, although circuit appellate courts, as discussed, have no statutory authority to exercise such review. The cases relied upon by Appellant all involve (1) a District Court of Appeal’s second tier certiorari review of (2) a circuit court’s plenary review of (3) final orders, and for those reasons are inapplicable. The legislature has not conferred such second tier certiorari review jurisdiction on circuit appellate courts and, as noted above, this Court derives its nonfinal review authority from the legislature, see § 26.012, Fla. Stat., NOT from the Supreme Court’s enactment of such rules as Rule 9.130 (a) (1), Fla. R. App. P. See also, Blore v. Fierro, 636 So.2d 1329 (Fla. 1994); Shell v. Foulkes, 19 So. 3d 438 (Fla. 4th DCA 2009).
Moreover, even if this Court, as an appellate court, had statutorily authorized certiorari review jurisdiction, it does not choose to exercise that discretion in this case. See Shupack v. Allstate Ins. Co., 356 So.2d 1298, 1299 (Fla.3d DCA 1978) (“We recognize our authority to treat the appeal as a petition for certiorari, however, we decline to do so and dismiss the appeal. . .”); and see, Corzo v. Pineiro, 990 So.2d 1177, 1178 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2218a] (same). As stated in Fassey v. Crowley, 884 So.2d 359, 362-3 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D2050a]:
Nonfinal orders are generally reviewable only on plenary appeal of the final order disposing of the case. Florida Rule of Appellate Procedure 9.130(a)(3) designates those few types of nonfinal orders deemed important enough for immediate review. Certiorari review of nonfinal orders under rule 9.030(b)(2)(A) is “an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of nonfinal orders.” State Farm. Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993) (citing Martin-Johnson, Inc., 509 So.2d 1097). “[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief.” State v. Pettis, 520 So.2d 250, 252 (Fla.1988) (quoting rule 9.130 committee note).
This brings us to the landmark Florida Supreme Court decision in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987), superseded by statute on other grounds, wherein the Florida Supreme Court set forth the guiding principles which bind this Court in the case at bar. There, the Florida Supreme Court held: “We emphasize, first of all, that common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Martin-Johnson, Inc. v. Savage, supra, at 1098. It is precisely that prohibited circumvention which Appellant would have us undertake, if we chose to treat the present matter as a petition for common law certiorari. The Supreme Court continued:
A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances. The order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage. Id. at1098.
As will be demonstrated, infra, this standard for the exercise of discretionary certiorari jurisdiction has not been met here, despite Appellant’s repeated arguments to the contrary. Accordingly, we will not exercise our certiorari jurisdiction, were we to have such jurisdiction. Finally, the Martin-Johnson Court held: “Were we to permit certiorari review of such orders. . .,we in essence would be creating a new category of non-final orders reviewable on interlocutory appeal. We are unwilling to do so. . . ” Id. Nor are we.
A plethora of decisions supports our declining to entertain any certiorari review jurisdiction we may have in the case at bar. The Martin-Johnson rationale has been employed repeatedly to deny certiorari review. Its rationale applies in PIP cases, as here, where a party seeks appellate review of a county court non final, nonappealable order, and the circuit appellate court denies appellate review for lack of jurisdiction; in such cases the Third District routinely also denies certiorari review. See, e.g., County Line Chiropractic Center v. United Auto Ins. Co., 964 So.2d 802, 803 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2231e], citing Valenzuela v. Valenzuela, 648 So.2d 741 (Fla. 3d DCA 1994). Accord, South Broward Hosp. Dist. v. Dupont By and Through Dupont, 683 So.2d 1135, 1135 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D2603a] (“certiorari will not be granted to review an order denying a motion for summary judgment, because petitioner will have an adequate remedy on final appeal.”).
The First District had the following to say, with respect to the Appellant’s alternative request that we treat its notice of appeal as a certiorari petition:
[Even if appellant. . .] asked that its notice of appeal be treated as a petition for writ of certiorari,. . .we [would not] be inclined to grant such a request. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098-99 (Fla.1987) (“[C]ommon law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders. . . . A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances.”); Malone v. Costin, 410 So.2d 569, 570 (Fla. 1st DCA 1982) (“It is anticipated that since only the most urgent interlocutory orders are appealable under rule 9.130. . ., there will be very few cases where common law certiorari will provide relief.”). Accordingly, the appeal is dismissed. Bennett’s Leasing, Inc. v. First Street Mortgage Corp, 870 So.2d 93, 98 (Fla. 1st DCA 2003) [28 Fla. L. Weekly D2700a].
Other examples abound. See, In re Estate of Howard, 463 So.2d 446, 447 (Fla. 4th DCA 1985) (“certiorari will only be granted when a party demonstrates both a departure from the essential requirements of law and the lack of an adequate remedy by appeal. See USF & G v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981); Lindsey v. Sherman, 402 So.2d 1349 (Fla. 4th DCA 1981) (“ [Since appellant] ha[d] an adequate remedy by appeal. . ., the writ of certiorari [was] denied.”) [Emphasis added].
Of course, even if, as strenuously argued by Appellant, the trial court’s ruling in the case at bar (that the insureds’ failure to appear at the EUO) was a condition subsequent) constituted a “departure from the essential requirements of law,” Appellant has failed to demonstrate that it lacks “an adequate remedy by appeal,” should it suffer an adverse final judgment after trial, thus precluding this Court from exercising any certiorari review jurisdiction it may have. See also, Witten v. Howard Vernon Lodges and Restaurants, Inc., 169 So.2d 531 (Fla. 1st DCA 1964) (non-final order denying motion to strike additional defense and motion for partial summary judgment could not be reviewed by writ of certiorari, and DCA refused to allow certiorari to “be used as a vehicle to circumvent the rule of law narrowly restricting the class of orders entered which may be reviewed prior to entry of final judgment”); B. G. & K. v. Seminole Kraft Corp., 583 So.2d 361 (Fla. 1st DCA 1991) (appeal from non-final judgment dismissed and common law certiorari denied).
This Court is cognizant of Appellant’s repeated argument concerning the “irreparable harm” it will suffer if denied pre-trial certiorari review of the trial court’s non-final, non-appealable order. Yet, the courts, and particularly the Third District, have just as repeatedly rejected similar claims of prejudice. In Royal Caribbean Cruises, Ltd. v. Sinclair, 808 So.2d 231, 232 (Fla. 3rd DCA 2001) [26 Fla. L. Weekly D2608c], The Third District held:
[C]ertiorari review does not lie to review the denial of a motion to dismiss. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). The mere expense and inconvenience of litigation does not constitute harm sufficient to permit certiorari review, even if the order departs from the essential requirements of the law. Id. at 1100. [Moreover, the Savage] Court cautioned litigants that certiorari review would lie only in a very narrow context. Certiorari review was never intended as a vehicle to seek review of the denial of a motion to dismiss one count of a multi-count complaint where the defendant would continue to defend the other counts. [Emphasis added].
Accord, Cuneo v. Conseco Servs., LLC, 899 So.2d 1139 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D676a].
Yet, as will be more fully discussed below, Appellant persists in its claim that the trial judge’s EUO ruling below will deprive it of its essential defense. This assertion, however, is belied by the very order sought to be reviewed, either by appeal or certiorari herein, as the trial court expressly provided in its order, “[t]he issue of EUO No Show shall be a question for a jury.” R1. 76; R2.153. [Emphasis added]. In this regard, the Third District’s decision in Riano v. Heritage Corp. of South Florida, 665 So.2d 1142, 1145-6 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D147b], is directly on point; there, the Court held:
[T]he petitioner has not demonstrated that he will be irreparably harmed if the lower court order is allowed to stand. Any alleged injury is entirely speculative at this point. He will be permitted to proffer the testimony concerning insurance coverage during trial, outside the presence of the jury, and the trial judge will rule on admissibility at that time. If the ruling excluding the evidence is sustained, then the testimony will be placed in the record for this court to review if an appeal is taken. The petitioner has offered no facts substantiating his claim that the desired testimony will never be known absent a ruling by this court. We wish to emphasize that it is not the function of this court to review interlocutory orders in order to save the litigants the time and expense of a trial. [Emphasis added].
See also, 94th Aero Squadron of Miami, Inc. v. Colon, 862 So.2d 806 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2721a] (treating appeal from an adverse summary judgment as a petition for a writ of certiorari because a non-final order was not appealable unless the trial court order specifically states that, as a matter of law, such defense is not available to a party, and “treat[ing appeal] as a petition for a writ of certiorari, [Third District] den[ied] the petition.”) [Emphasis added].
Numerous other examples of the Third District’s refusal to treat a non-final appeal as a petition for writ of certiorari appear throughout our jurisprudence. See, Wausau Business Insurance Company v. Quintana, 933 So.2d 1185, 1186 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1627a]; Shupack v. Allstate Insurance Company, 356 So.2d 1298, 1299 (Fla. 3d DCA 1978); City of Hialeah v. Fernandez, 661 So.2d 335, 343 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2215a]. Again and again, the Third District has rejected the argument that the expense and inconvenience of litigation justifies the exercise of the Court’s discretionary certiorari review where there is an adequate remedy by appeal, “even if the order departs from the essential requirements of the law.” Royal Caribbean Cruises, Ltd. v. Sinclair, 808 So.2d 231, 232 (Fla. 3d DCA 2001). A stark example of the refusal of the courts to exercise certiorari jurisdiction, in the face of claims of irreparable harm, appears in Abbey, D.O. v. Patrick, 16 So.3d 1051, 1054 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1877c], where Judge Padovano explained: “That an order forcing a party to give up the constitutional right to a jury trial is not reviewable by certiorari is a point that should give appellate judges cause for the exercise of restraint in the use of certiorari in any case.” See also, 3 Fla. Jur 2d Appellate Review §476: “[T]he mere expense and delay or inconvenience of litigation does not constitute harm sufficient to permit certiorari review even if the order departs from the essential requirements of law. Certiorari is not designed to serve as a writ of expediency.” [Footnotes omitted].
VI. THE PARADE OF HORRIBLES
Throughout its Initial Brief, as well as in its RESPONSE to the motion to dismiss, Appellant, undoubtedly aware of the “irreparable harm” prerequisite to the exercise of a court’s discretionary certiorari jurisdiction, invokes a veritable “parade of horribles” that will likely befall it if forced to go to trial in the wake of the trial court’s non-final summary judgment order which held that failure to appear at an EUO constituted a violation of a condition subsequent. In an effort to meet the purposely high threshold for invocation of our discretionary certiorari review, Appellant includes the following “parade of horribles” that will likely inure absent our certiorari review:
· fundamental misapplication of the law, overcoming over 100 years of stare decisis including the controlling PIP statute and years of precedential case law to the contrary;
· prevention of Appellant’s ability to obtain a fair trial;
· requirement of appellate review;
· the breach of contract precludes the lawsuit on the policy;5
· the lower court’s ruling “entice[s] other County Court Judges to apply the same erroneous standard” and will “undoubtedly affect other PIP cases;”
· the ruling improperly impedes an insurer’s ability to investigate and discover fraud;6
· the order in question subjects the insurance industry to an invalidation of its contracts;
· the order results in a “wholesale miscarriage of justice;”
· all subsequent litigation on the EUO issue “will be fatally flawed;”
· the case will result in the giving of improper jury instructions;
· the order shifts the burden of proof to the defendant insurance company requiring unnecessary discovery;
· exposure to attorneys’ fees.
Without attempting to dissect and examine the above litany of horrors peppered throughout Appellant’s Initial Brief and RESPONSE, suffice it to say that this Court has viewed them, both individually and cumulatively, and concludes that Appellant has failed to convince us that it is entitled to certiorari review. Similar attempts to convince reviewing courts to grant certiorari appear throughout Florida law. In Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995) [20 Fla. L. Weekly S317a], the Florida Supreme Court ratified its 1987 Savage case, and in the process, rejected the “parade of horribles” predicted by the petitioner should it be required to go to trial without being permitted to obtain certiorari review of a trial court order with undeniably adverse consequences to the would-be petitioner:
In Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987), we held that appellate courts may not grant petitions for review by certiorari of interlocutory orders denying motions to dismiss or strike claims for punitive damages. Noting that common law certiorari is an extraordinary remedy, we determined that an order approving the sufficiency of a punitive damages pleading did not meet the criteria for this extraordinary review, even considering the financial disclosure which followed determinations that punitive damages had been sufficiently plead. Id. at 1098-99.
The High Court expressly rejected the “allegations of [irreparable] harm” dramatically predicted by Globe Newspaper such as “having to defend a claim for punitive damages and produce financial worth discovery in violation of the substantive right created by section 768.72,” id. at 520, n.1, rejecting “Globe[‘s] argue[ment of its]. . . right to be free from those obligations. . .[and its assertion that such harm] cannot be remedied upon plenary appeal.” Id. at 520, n.1. Globe Newspaper is directly on point, especially with respect to Appellant’s complaint of requiring it to undergo “unnecessary discovery” in the wake of the order sought to be reviewed herein.
Where it was claimed that a pretrial denial of a transfer or change of venue of a case would, among other results, force the Appellant to incur great expense, the Third District stated that it was “unimpressed with the parade of horribles invoked by the appellant as to the consequences of a rule under which a tortfeasor may be required to defend an action for consequences his conduct has caused in an unanticipated area far from his home. Any such complaint may be remedied, if justified, under § 47.122.” Tucker v. Fianson, 484 So.2d 1370, 1372 n.4 (Fla. 3d DCA 1986), review denied, 494 So.2d 1153 (Fla.1986).
In keeping with the important jurisdictional principles that we confront in the case at bar, the following observation of the Fourth District is most pertinent: “If we bear in mind that all we are concerned with at this juncture is activating the jurisdiction of the court, any parade of horribles . . . must be brushed aside. * * * The criteria is availability or access to the courts and no other rule suits it so well.” Jameson v. State, 447 So.2d 892, 896 (Fla. 4th DCA 1983).
The rationale for most of the decisions declining to exercise discretionary certiorari review is the availability of the remedy of plenary review upon final judgment. See, e.g., Ovadia v. Doctors’ Hosp. of South Miami, Ltd., 557 So.2d 137, 137 (Fla. 3d DCA 1990) (“certiorari is dismissed without prejudice to raise the constitutional issue presented herein upon an appeal from . . . any . . .adverse final order or final judgment. We reach this result because, simply stated, the petitioner has an adequate remedy by appeal from such a final order or final judgment when entered — which necessarily means that we have no jurisdiction to review the order complained of on a petition for a writ of certiorari. We have not overlooked the petitioner’s forceful arguments to the contrary, but are not persuaded thereby.”) [Emphasis added].
Here too, despite the grave “parade of horribles” predicted by Appellant should we not exercise our purported discretionary certiorari review, each and every complaint can be remedied by a plenary appeal from any adverse jury verdict and final judgment that would follow.
VII. CERTIORARI AFTER DENIAL OF SUMMARY JUDGMENT
The order that is the subject of the AMENDED NOTICE OF APPEAL in the case at bar both grants Appellee’s motion for partial summary judgment on the EUO issue with the express provision that such issue “shall be a question for the jury” and denies Appellant’s motion for final summary judgment on the same issue.7 The Third District has long followed the rule that where there is an adequate remedy by appeal from a final judgment, certiorari will not lie to review an order denying a motion for summary judgment, even if the losing party must endure the expense of trial and suffer the entry of a final judgment. Baptist Hosp. of Miami, Inc. v. Demario, 682 So.2d 1106, 1106 (Fla. 3d DCA 1996) [22 Fla. L. Weekly D246a] (citing, inter alia, R.J. Brown, Inc. v. Seminerio, 246 So.2d 629 (Fla. 4th DCA 1971).
Baptist Hospital’s reliance upon R. J. Brown, supra, is significant, for that case contains the analysis we adopt in full as our own. There, the Fourth District held:
The petitioner alleges in the petition for writ of certiorari that the trial court in denying the motion for summary judgment departed from the essential requirement of law and that the petitioner has no remedy, save certiorari, to guard its right and protect itself from the irreparable harm of incurring the expenses for representation at unnecessary and invalid trial proceedings. Initially, we are confronted with the propriety of reviewing by common law certiorari an interlocutory order in a civil action denying a motion for summary judgment. In making this determination, the Florida Supreme Court in Brooks v. Owens, Fla.1957, 97 So.2d 693, expressed the following:
This court will review an interlocutory order in law only under exceptional circumstances. Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate.
Considering this case in the light of the foregoing rule, and with a realization that there is expense in defending lawsuits, to grant the relief sought herein to review an order denying a motion for summary judgment would, in our opinion, be a disruption of the orderly process of administration of justice and an intrusion upon the trial jurisdiction of the lower court. We would in fact be interjecting ourselves into the middle of a lawsuit and directing the trial judge in the conduct of the case. What in fact the petitioner seeks of this court is to enter a summary judgment in its favor. [Emphasis added].
The R.J. Brown analysis applies perforce here: the trial court’s order, insofar as it finds that failure to attend an EUO constitutes a “condition subsequent” (which Appellant in its brief so strenuously argues amounts to an egregious departure from the essential requirements of law), is both fully reviewable by plenary appeal should Appellant GEICO suffer an adverse verdict, and, perhaps even more importantly for purposes of satisfying the “manifest injustice-egregious error” test for permitting certiorari review, expressly provides on its face: “The EUO No Show shall be a question for the jury,” thereby affording GEICO an opportunity to present it as a defense to a jury. Thus, precisely as in R. J. Brown, supra, “[u]ntil that time, it is premature for this court to evaluate . . .properly an interlocutory order denying a motion for summary judgment. *** Accordingly, certiorari is denied without prejudice to appropriate appellate review subsequent to final judgment.” 246 So.2d at 630-1. [Citations omitted].
Finally, we, as has the Third District, adopt the analysis of the Fourth District in Harte v. Palm Beach Biltmore Condominium Ass’n. Inc., 436 So.2d 444, 445 (Fla. 4th DCA 1983):
We will not review the denial of a defendant’s motion for summary judgment as to a single count absent a demonstration of both a departure from established law and the lack of an adequate remedy by appeal. As we have so often held, the necessity of proceeding with a trial is not a sufficient ground to invoke certiorari. If it were, then the denial of every motion . . . for summary judgment would automatically provoke immediate appellate review by every defendant. In almost every case, trial judges make preliminary rulings on matters of law in defining the issues presented by the parties. The overall structure of the appellate system in this state does not countenance piecemeal review as to each of those rulings. [Cited with approval in Smith v. Glisson, 468 So. 2d 394, 395 (Fla. 3d DCA 1985)].
Precisely so in the case at bar.
VIII. APPELLEE’S MOTION FOR ATTORNEYS’ FEES
We thus conclude that we lack appellate jurisdiction and that we must dismiss Appellant’s appeal. In addition, we, as the appellate division of the circuit court, lack “first-tier” certiorari jurisdiction. We further conclude that assuming arguendo that we have common law certiorari jurisdiction, we decline to exercise it and deny Appellant/Petitioner’s alternative petition for writ of common law certiorari.
This resolution renders Appellee the “prevailing party” in this appellate proceeding. Thus, we hold that Appellee is legally entitled to appellate attorneys’ fees under section 627.428, notwithstanding the fact that there was no decision on the merits. As correctly asserted by Appellee in its motion for appellate attorneys’ fees, “the prevailing party clause in the appellate fee portion of section 627.428. . .mandates a fee award ‘in the event of an appeal in which the insured or beneficiary prevails’ . . . include[s] cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits.” Arango v. United Auto Ins. Co., 901 So.2d 320, 321 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a]. The Arango Court, as this Court, “conclude[s] that as the prevailing party on appeal . . ., Arango is legally entitled to appellate attorneys’ fees under section 627.428, notwithstanding the fact that there was no decision on the merits.” Id.
Accordingly, this cause is dismissed and remanded to the trial court for its assessment of appellate attorneys’ fees as well as proceedings consistent with this Court’s determination herein. (FIRTEL and CYNAMON JJ., concur)
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1The second document, GEICO’S Amended Notice of Appeal, contains a footnote citing to a case, addressed hereinafter, see n. 7, infra, at page 24.
2Said OBJECTION cites no cases but, instead, asserts that Appellee’s “avoidance of filing its Answer Brief reflects that it does not want to address the substantive issues. . . addressed by the Initial Brief,” and if this Court had “substantive concerns relating to jurisdiction, it could have required additional briefing relating solely to jurisdictional issues. . .”. See OBJECTION at ¶¶ 8-9.
3Some examples of legislative creation of Circuit Court appellate jurisdiction appear in sections 924.07, 924.071, and 924.08, Florida Statutes, dealing with criminal appeals.
4We do not here address first tier certiorari jurisdiction of the circuit appellate courts to review other types of pretrial orders where there is no adequate remedy by plenary appeal of a subsequent final order; we limit our discussion and the above holding that we lack first tier certiorari jurisdiction to review non final and non appealable orders of the county courts denying summary judgment. See discussion and supporting case law, infra.
5Thus, under Appellant’s view, all PIP orders, final or not, that determine coverage are immediately reviewable by common law certiorari.
6This Court has scoured the entire record below, and finds not a hint of fraud therein; rather, Appellant’s assertion that, absent an EUO from each of the insureds, it cannot uncover “fraud” is pure speculation.
7Insofar as Appellant, in its AMENDED NOTICE OF APPEAL seeks to invoke Rule 9.110(m), Fla.R.App.P., the cited subsection of Rule 9.110, Fla.R.App.P., contains an exception, purporting to permit “Insurance Coverage Appeals” either under the direct appeal rule or the non-final appeal rule, Rule 9.130, Fla.R.App.P. Putting aside the question of whether or not the EUO No Show Order in the case at bar “determine[s] the existence or non-existence of insurance coverage,” as previously and more fully set forth in this opinion above, the rule-making authority of the Florida Supreme Court cannot confer appellate jurisdiction on circuit courts to review orders of county courts. Blore v. Fierro, 636 So.2d 1329 (Fla. 1994); Shell v. Foulkes, 19 So.3d 438 (Fla. 4th DCA 2009); only the legislature may do so. Also cited in Appellant’s AMENDED NOTICE OF APPEAL is Canal Insurance Company v. Reed, 666 So.2d 888 (Fla. 1996) [21 Fla. L. Weekly S22c], for the rule that coverage issues should be resolved as soon as possible; however, as is the case with virtually every opinion cited by Appellant in support of our certiorari jurisdiction, Reed does precisely the opposite, expressly holding, “we answer the certified question in the affirmative, finding that the declaratory judgment in this action should be reviewed as an appeal from a final order.” 666 So.2d at 892. [Emphasis added].
