10 Fla. L. Weekly Supp. 478b
Insurance — Venue — Forum non conveniens — Appeals — Stay — Where Orange County Court granted request to transfer venue to Hillsborough County, plaintiff medical provider filed notice of appeal of venue decision in Ninth Circuit and motion for stay of Hillsborough County proceedings, but then withdrew motion for stay and proceeded with litigation in Hillsborough County to final judgment, Ninth Circuit’s exercise of review was exercise of discretionary certiorari jurisdiction which did not stay proceedings in Hillsborough County, and Hillsborough County Court was not precluded from entering final judgment — Additionally, medical provider’s withdrawal of request for stay and participation in proceedings in Hillsborough County waived venue — Finally, medical provider has not demonstrated prejudice where trial court could reach no other conclusion than that provider lacks standing because bills submitted to insurer were from orthopaedic corporation not named in suit, and record indicates no connection between treatment rendered to insured and provider — Although provider and orthopaedic corporation have mutual director, they are separate and distinct corporations — No error in granting summary judgment in favor of insurer without leave to amend
TANNENBAUM CHIROPRACTIC INSTITUTE, INC., d/b/a CITIES ORTHOPAEDIC GROUP, as assignee of Deborah French, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 01-702. Division X. L.C.. Case No. 99-12724 CC. Amended opinion filed May 19, 2003. Vivian C. Maye, Judge. Counsel: Anthony Britt, Brandon, for Appellant. Dale T. Gobel, Drage, de Beaubien, Knight, Simmons, Mantzaris & Neal, L.L.P., Orlando, for Appellee.
This cause might well be entitled a Tale of Two Courts. Herein, Tannenbaum (plaintiff below) appeals the summary judgment entered against it by the County Court of Hillsborough County on two grounds: the first being that the Hillsborough County Court improperly rendered a final judgment in this case when venue remained at issue in the Ninth Circuit, and the second is that it erred in refusing to grant Tannenbaum leave to amend its complaint instead of granting summary final judgment in favor of Defendant/Appellee. Based upon our exhaustive review of the procedural and substantive aspects of this case, we affirm the decision of the trial court.
The journey begins in the Orange County Court (Ninth Judicial Circuit), travels to the Hillsborough County Court (Thirteenth Judicial Circuit), with side trips to their respective circuit courts sitting in their appellate capacities. On May 28, 1999, Appellant Tannenbaum Chiropractic Centers, Inc., d/b/a Cities Orthopaedic Group (hereinafter “Tannenbaum”), filed suit in the Orange County Court against Appellee State Farm for the payment of unpaid bills submitted on behalf of its insured. Appellee moved for a change of venue citing forum non conveniens, the basis for which was that the accident occurred in Hillsborough County, treatment was provided in Hillsborough County, and the claims office of State Farm, as well as the office of Tannenbaum, are located in Hillsborough County. The request to transfer venue was granted by the Orange County Court on April 27, 1999, and the parties were directed to transfer the case to the Hillsborough County Court. Tannenbaum filed a timely appeal1 of the venue decision to the Ninth Judicial Circuit Court. Meanwhile, State Farm effected the transfer of the case to Hillsborough County.
Because it had filed a notice of appeal in the Ninth Circuit Court, Tannenbaum filed a motion for stay of proceedings in the Hillsborough County Court on August 24, 1999. However, Tannenbaum withdrew this motion on February 8, 2000, and the litigation proceeded to final judgment in Hillsborough County. On January 2, 2001, the Hillsborough County Court granted summary judgment in favor of State Farm based upon Tannenbaum’s lack of standing. Tannenbaum filed a timely notice of appeal of the Hillsborough judgment in the 13th Judicial Circuit Court.
Subsequently, on April 19, 2001, approximately two years after the notice of appeal of the venue order had been filed in the Ninth Circuit Court, and three months after final judgment had been entered in the Hillsborough County Court, the Ninth Circuit Court, in its appellate capacity, issued a final order and opinion reversing the Orange County Court’s decision transferring venue, thereby reinstating venue in Orange County. By the time the Hillsborough County Court received the order on May 16, 2001, the present appeal had already been filed here in the 13th Circuit Court.
In addition to its request for review of the substantive issue of the trial court’s denial of leave to amend the complaint, Tannenbaum requests this Court to return this case to the Orange County Court. Tannenbaum asserts that the Hillsborough County Court had no authority to enter summary judgment in the case, pursuant to the stay provision in Florida Rule of Appellate Procedure 9.130(f), and pursuant to the Ninth Judicial Circuit’s appellate ruling reversing the transfer order of the county court. Beginning our discussion with the procedural issue, we deny the request to send the matter back to the Orange County Court and find support for our decision both in the law and the facts of this case.
Tannenbaum’s first argument — that Florida Rule of Appellate Procedure 9.130(f) precluded the Hillsborough County Court from entering final judgment — is without merit. Rule 9.130 applies only to appeals of nonfinal orders of circuit courts — acting in their trial capacity — to district courts of appeal. (Emphasis ours.) See Blore v. Fierro, 636 So.2d 1329 (Fla. 1994). See also Amendments to Florida Rules of Appellate Procedure, 780 So.2d 834, 838 (Fla. 2000), which state that jurisdiction of circuit courts to review nonfinal orders of the county court is conferred by general law and not by Supreme Court rule. We know of no general law that imparts appellate jurisdiction in the circuit court over nonfinal civil orders of the county court. In short, Florida Rule of Appellate Procedure 9.130 and 9.130(f) are inapplicable to the instant case. The Ninth Circuit’s jurisdiction was not Rule 9.130 appellate jurisdiction, but rather, Rule 9.100 certiorari jurisdiction. The version of Rule 9.130 in effect at the time appears to impart such jurisdiction to the Circuit Court, however, the Supreme Court corrected the rule in its Blore decision and revised the rule in Amendments to Florida Rules of Appellate Procedure, cited supra. Treating the Ninth Circuit’s exercise of review as being the exercise of its discretionary certiorari jurisdiction, we determine that it has no effect on proceedings in Hillsborough County; stays, such as those provided by Florida Rule of Appellate Procedure 9.130(f), are not extended to writs, and the Hillsborough County Court was not precluded from entering final judgment. Spielvogel v. Crown Realty Associates, 465 So.2d 532, 533 (Fla. 4th DCA 1984).
Additionally, actions by Tannenbaum provide additional support for our decision. Tannenbaum initially petitioned the Hillsborough County court for a stay of proceedings pending resolution of the appeal (sic) in Orange County, however, Tannenbaum subsequently withdrew its request for the stay without explanation and proceeded with litigation. For all the Hillsborough County Court knew, Tannenbaum had withdrawn its venue challenge in Orange County.2 Whether or not the Hillsborough County Court assumed that Tannenbaum had done so, there is no doubt whatsoever that Tannenbaum withdrew its challenge to the Hillsborough County Court’s authority to proceed with the case. Venue may be waived under Florida law. Ringling Bros.-Barnum & Bailey Combined Show, Inc. v. State, 295 So.2d 314 (Fla. 1st DCA 1974), cert. denied 303 So.2d 644 (Fla. 1974). In addition to withdrawing its motion for a stay, Tannenbaum noticed for hearing its own motion for summary judgment.
Finally, Tannenbaum does not demonstrate any prejudice suffered as a result of the trial court’s proceeding as it did, and it was probably unable to do so, particularly when our review of the substantive issue indicates that the trial court could reach no other conclusion on the merits than the one it reached, as is more fully discussed below. Our reasoning is consistent with the court’s holding in Spielvogel v. Crown Realty Associates, cited supra, at 533. To refer this case back to Orange County at this stage of the litigation would be, to use the words of the Fourth District in Spielvogel, a waste of time. Id.
In summary, we conclude that the trial court did not act improperly in rendering final judgment in the case, considering the true nature of the proceedings before the Ninth Circuit Court. Even if there were doubt as to this issue, Tannenbaum’s withdrawal of its request for a stay of proceedings, and subsequent invoking of the Hillsborough court’s authority served to remove it. It is this action on the part of Tannenbaum and its attorney which concerns this Court. For Tannenbaum and its attorney to now claim, after withdrawing its challenge to the Hillsborough County Court’s authority, that it had no authority to render a final judgment, particularly in light of an unfavorable outcome, smacks of forum shopping, conduct upon which Florida law takes a dim view. The Florida Bar v. Klein, 774 So.2d 685 (Fla. 2000). To accept Tannenbaum’s argument would effectively give Tannenbaum “two bites at the apple,” and condone this activity. This we cannot do.
Procedural issues aside, Tannenbaum also appeals the trial court’s denial of its motion for leave to amend and the subsequent granting of summary judgment in favor of State Farm. However, the record supports that the trial court’s decision was correct. The bills submitted to State Farm for payment were from Total Orthopaedic, Inc., which was not named in the lawsuit, and it was Total Orthopaedic which rendered the treatment for State Farm’s insured. The record indicates no connection between the treatment rendered to the insured and Tannenbaum. Although Robert Tannenbaum, D.C. sits as a director for both Tannenbaum, Inc., and Total Orthopaedic, Inc., they are separate and distinct entities, as their articles of incorporation indicate. See Gray v. Executive Drywall, Inc., 520 So.2d 619 (Fla. 2d DCA 1988) (trial court correctly determined that two corporations were separate entities notwithstanding some common ownership of stock, common representation of each at the job site where the alleged personal injury occurred, each occupying the same office building (but in different offices), the fact that the same person signed the contracts of each to do work at the job site, the use by both corporations of a common attorney, and both corporations having the same insurance carrier). This is not a situation in which a party is incorrectly described as a corporation when it is not, as in Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla. 1956) (in which leave to amend was granted to correct the identification of defendant as being incorporated only and the identification of defendant was otherwise correct). Rather, the plaintiff named in the caption is the correct name of a separate and distinct corporation from the one intended. A plaintiff may amend a complaint to correct the identification of a party, but the plaintiff may not substitute an entirely new party. Johnson v. Taylor Rental Center, 458 So.2d 845 (Fla. 2d DCA 1984); Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977). Nor is this a situation in which some intervening factor required a substitution of a party, such as a death, divorce, or some other transfer of interest, as contemplated by Florida Rule of Civil Procedure 1.260. Thus, Tannenbaum, as a corporate entity, lacked standing to sue, and the trial court had no choice but to grant summary judgment in favor of State Farm.
It is therefore ORDERED that the decision of the county court is AFFIRMED. It is further ORDERED that Appellant’s request for attorney’s fees is DENIED. (Little and Simms, JJ., concur.)
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1For reasons which will be explained in the opinion, the term “appeal” is not accurately used here; however, it is the term used throughout the relevant proceedings.
2The matter remained pending in the Ninth Circuit, however. That decision was not rendered for over three months after the final order of the Hillsborough County Court, and two years after the initial order transferring venue to Hillsborough County.
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