10 Fla. L. Weekly Supp. 395b

NOT FINAL VERSION OF OPINION
Subsequent Changes at 10 Fla. L. Weekly Supp. 396a

Insurance — Appeals — Timeliness — Order enforcing settlement agreement that ordered defendant to tender notice of dismissal with prejudice contemplated no further judicial labor and was, therefore, final order despite trial court’s characterization of order as interlocutory — Amended final judgment that purported to re-enter final order or revise final order in immaterial way did not toll time for appeal — Even if order were interlocutory, it merged into prior appeal that sought review of order denying plaintiff’s entitlement to attorney’s fees — Appeal dismissed for lack of jurisdiction

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PERRY MOORE, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 01-11389. Division X. L.C. Case No. 96-10119-CC-I. February 18, 2003. Robert J. Simms, Judge. Counsel: Karen Barnett, Tampa, for Appellant. Wendy Coxhead, Newcastle, WA, for Appellee.

ORDER DISMISSING APPEAL FOR LACK OFJURISDICTION and ORDER GRANTING APPELLEE’SMOTION FOR APPELLATE ATTORNEY’S FEES

THIS CAUSE is before the Court on its own motion.

Based upon our review of the procedural history of this case, we conclude that this Court lacks jurisdiction to adjudicate the order on appeal, the 1997 Order Enforcing Settlement Agreement. The trial court’s characterization of the 1997 order as interlocutory in its Final Judgment dated December 18, 2001, does not alter its finality. That an amended final judgment purports to re-enter prior orders finalized at law or that a previously entered final judgment is revised in an immaterial way does not toll the time within which review must be sought. Thermoplastic & Signs, Inc. v. Metropolitan Dade County, 746 So. 2d 1140 (Fla. 3d DCA 1999). The 1997 order, which, among other things ordered Defendant (Appellant herein) to tender a notice of dismissal with prejudice, contemplated no further judicial labor and was, therefore, final. State Farm Mutual Automobile Insurance Co. v. Open MRI of Orlando, Inc., 780 So. 2d 339 (Fla. 5th DCA 2001).

Significantly, a previous order of this Court in its appellate capacity held that Appellant’s attempt to litigate — on rehearing rather than by cross-appeal — the very issues now before this Court would not be addressed. The Circuit Court stated:

…[T]he Order on appeal was the Trial Court’s Order Denying Plaintiff’s Motion to Determine Entitlement to Attorney’s Fees and Costs rendered on February 23, 1999, not the Trial Court’s ruling on Appellant’s Motion to Enforce Settlement Agreement rendered on October 9, 1997. Therefore, Appellee’s¹ argument that the Plaintiff did not accept a written Offer of Judgment made pursuant to section 768.79 of the Florida Statutes should have been raised on appeal of the Trial Court’s ruling on October 9,1997. As such, Appellee’s argument as to the validity of the settlement agreement is beyond the scope of this appeal. (Emphasis supplied.)

Moore v. State Farm Mutual Automobile Insurance Co. Appeal no. 99-2053 (Fla. 13th Judicial Circuit April 19, 2000).

Even if the 1997 order were interlocutory, it merged into the 1999 appeal which sought review of an order denying then-Appellant Moore’s entitlement to attorney’s fees, which order is further indication of the finality of proceedings at the time of the first appeal. The issues currently before this Court were not revived by the entry and re-publication of the previous order in an amended final judgment, and as such, this Court lacks jurisdiction to address them. It is therefore

ORDERED that the appeal is DISMISSED. It is further ORDERED that inasmuch as Appellee is the prevailing party herein, Appellee’s timely Motion for Appellate Attorney’s fees is GRANTED. (Levens and Baumann, JJ., concur.)

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¹Here, “Appellee” refers to State Farm, which is the appellant in the instant action; “Appellant” and “Plaintiff” refer to Moore.

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