13 Fla. L. Weekly Supp. 124b
Insurance — Personal injury protection — Default — Error to enter default judgment where medical provider failed to serve insurer with prior notice of application for default — Order vacating default, entered after insurer filed notice of appeal, was without effect as appellate court had jurisdiction
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. GEMINI MEDICAL GROUP, a/a/o Mayelin Reyes, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-287 AP. L.T. Case No. 2002024410 SP23. Opinion filed May 27, 2005. Dissent filed November 16, 2005. On appeal from the County Court for Miami-Dade County, Judge Linda S. Stein. Counsel: John W. Leon, for Appellant. Brian M. Rodier, for Appellee.
(Before JACQUELINE HOGAN SCOLA, SARAH ZABEL, PETER ADRIEN, JJ.)
ORDER ON APPEAL OF DEFAULT FINAL JUDGMENT
Appellant, United Automobile Insurance Company, appeals from the trial court’s entry of default final judgment for the Appellee, Gemini Medical Group, after Appellant failed to attend a Pre-Trial Conference. Due to Appellee’s failure to respond to Appellant’s brief, this Court will adopt Appellant’s Statement of the Case as fact.1 Having considered Appellant’s brief seeking reversal of the lower court’s entry of default final judgment, this Court hereby grants the appeal.
The trial court’s entry of default judgment was erroneous because Appellee failed to serve Appellant with the requisite prior notice of the application for default. Molina v. Watkins, 824 So.2d 959, 963 (Fla. 3rd DCA 2002); Maranto v. Dearborn, 687 So.2d 940, 941 (Fla. 3rd DCA 1997). Moreover, the trial court recognized this error by granting the Appellant’s Motion to Vacate Default Final Judgment on July 17, 2003. However, the trial court’s order was without effect, as this Court had appropriate jurisdiction pursuant to Appellant’s notice of appeal filed on May 22, 2003.
Appellant’s appeal is hereby GRANTED.
REVERSED AND REMANDED for further proceedings consistent with this opinion. (J. Hogan Scola, S. Zabel, JJ. P. Adrien, J., dissents).
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1The Court docket sheet appears to confirm the general statement of facts.
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DISSENTING OPINION
(PETER ADRIEN, J.) The Appellee, Gemini Medical Group a/a/o Mayelin Reyes filed a civil action against the Appellant, United Automobile Insurance Group on October 04, 2002. The lower tribunal held a pretrial conference on November 8, 2002, and entered an Order Invoking the Rules of Civil Procedure and giving Appellant 20 days to file a responsive pleading. On December 2, 2002, Appellant filed its Answer and Affirmative Defenses. (Appellant’s Answer was not filed until 59 days after the complaint was filed and 4 days after the deadline the lower tribunal ordered it to be filed). On December 12, 2002, the Appellee filed a set of Request for Admissions, Request for Production, Notice of Interrogatory and Notice for Jury Trial. On December 13, 2002, the Appellee filed an Amended Statement of Claim. The Amended statement of claim differed because it now alleged a specific amount of money. On January 22, 2003, the Court entered a Pretrial Conference Order and Order Setting Jury Trial. Said order noticed the parties of a pretrial conference for May 13, 2003 at 9:45 a.m. and informed them that the case was set for trial the week of June 9, 2003. Additionally, this order specifically required the parties to prepare and file a pretrial catalogue containing certain information and instructed the parties to complete all necessary discovery prior to the date of the pretrial conference, May 13, 2003. The Order also states as follows: “If counsel, a party or parties fail to appear pursuant to this Order, an ex-parte hearing shall be held and an appropriate judgment rendered or dismissal ordered, unless continued by the Court pursuant to request made at least eighteen (18) hours in advance for good cause shown. Failure to comply with any provision(s) of this Order may result in the imposition of sanctions, including but not limited to the striking of the jury demand, striking of pleadings, or default or dismissal. ALL ATTORNEYS MUST BE PRESENT. All above requests MUST be in WRITING and presented to the Court at the pretrial conference.”
On May 13, 2003, the lower tribunal held a pretrial conference at which counsel for Appellant failed to appear. The lower tribunal entered an Order, which is titled Default Final Judgment. The lower tirbunal cited two reasons to support its ruling: 1) The Appellant’s failure to appear at the pre trial conference; and 2) The Appellant’s failure to respond to any of the Appellee’s discovery request. This Appeal followed.
The Appellant has filed a brief, which only addresses one of the reasons given by the lower tribunal for entering its order, which is the Appellant’s failure to appear for the pre trial conference. The first point raised by the Appellant is without merit. The Appellant argues that he was never placed on notice that the Appellee had requested that a Default should be entered by the Court against Appellant. However, the Appellant was in fact placed on notice that a default could be entered, in addition to other sanctions, through the lower tribunal’s pretrial order and it was pursuant to a violation of that order in which the lower tribunal entered its ruling.
As to the second point raised by the Appellant regarding the current status of Florida law as it pertains to default judgments, where excusable neglect is involved, the Appellant is correct. Florida law does allow for liberally setting aside Default judgments where the Appellant has been able to establish excusable neglect and a meritorious defense. However, this was not the only basis the lower tribunal relied on in entering its order. At the time of the hearing, the Appellant failed to respond to the Appellee’s discovery request, part of which involved outstanding Request for Admissions. (Appellant also failed to comply with the lower tribunal’s pretrial order by failing to file a pretrial catalogue).
It is well settled that, in order to obtain appellate review, alleged errors relied upon for reversal must be raised clearly, concisely and separately as points on appeal. Singer v. Borbua, 497 So.2d 279 (Fla. 3rd DCA 1986). Failure to raise a point in the Appellant’s brief precludes the appellate court from considering the issue. See Fla. R. App. P. 9.210(b)(1), (5) (2004); City of Bartow v. Brewer, 896 So.2d 931 (Fla. 1st DCA 2005); Emergency Physicians-Kang & Assoc., MD., P.A. v. Parker, 800 So.2d 631, 636 (Fla. 5th DCA 2001). This Court should not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention. It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties . . . When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned or deemed by counsel to be unworthy. Again, it is not the function of the Court to re-brief an appeal. White v. White, 627 So.2d 1237 (Fla. 1st DCA 1993).
In the instant case, the Appellant has not even raised the issue of the lower tribunal’s ability or lack thereof to enter a default, whether the party is present or not, based on his failure to respond to the Appellee’s outstanding discovery. At the time of the pretrial conference, the Appellant had still not responded to the discovery which had been requested almost 5 months prior to said hearing. One of the main purposes of raising the issue in its appellate brief is to place the other party on notice as to exactly what issues are being raised on appeal. See Fla. R. App. P. 9.210. It would be unfair to the other party if this court were to address issues not properly placed before the Court.
The Appellant has also alluded to the fact that on July 17, 2003, the lower tribunal indicated that it was inclined to set aside its Default Final Judgment. This appeal was filed on May 22, 2003. Once the appeal was filed, the lower tribunal no longer had any authority and lacked jurisdiction to make any such determination due to the fact that this appeal was already pending. It would be improper for this Court to consider information not properly before it. Harbor Bay Condominiums, Inc. v. Basabe, 856 So.2d 1067 (Fla. 3rd DCA 2003); Frumkes v. Frumkes, 328 So.2d 34, 35 (Fla. 3rd DCA 1976). Accordingly, the lower tribunal’s order should be Affirmed.
