14 Fla. L. Weekly Supp. 516a
Insurance — Personal injury protection — Appeals — Non-final order — Order granting motion for summary judgment, which does not actually enter judgment for party, is non-final non-appealable order — Attorney’s fees — Appellate — Medical provider is entitled to award of appellate attorney’s fees where appeal commenced by insurer was dismissed without decision on merits
MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA., as assignee of Barbara Bayless, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 06-61. March 28, 2007. Counsel: Aaron E. Leviten, Allen, Kopet & Associates, PLLC, Winter Park. Richard O. Hale, IV, Orlando. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland.
ORDER ON APPELLANT’S MOTION FOR REHEARING AND RECONSIDERATION AND APPELLEE’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS MATTER came before the Court for consideration of “Appellee’s Motion to Tax Attorney Fees and Costs,” filed on February 21, 2007, and Appellant’s “Motion for Rehearing and Reconsideration of Court[‘s] Final Order Dismissing Appeal for Lack of Jurisdiction,” filed on March 1, 2007. The Court finds as follows:
On February 15, 2007, the Court dismissed this appeal for lack of jurisdiction. The notice of appeal indicates that Appellant wishes to appeal the trial court’s order granting Appellee’s motion for summary judgment, and the Court does not have jurisdiction to entertain an appeal from an order that simply grants a motion for summary judgment. See, e.g., Arcangeli v. Albertson’s, Inc., 550 So. 2d 557, 558 (Fla. 5th DCA 1989) (order that merely grants motion for summary judgment is not appealable final judgment); Bowman v. State Farm Mut. Auto. Ins. Co., 599 So. 2d 273, 274 (Fla. 5th DCA 1992) (order that merely grants motion for summary judgment is not appealable order); BCH Mech., Inc. v. McCoy, 584 So. 2d 1067, 1067 (Fla. 5th DCA 1991) (order that grants motion for summary judgment is non-final, non-appealable order).
Appellant asserts that it did not receive the Court’s Order directing Appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Therefore, the Court reconsiders its Final Order dismissing this appeal and reviews Appellant’s argument regarding jurisdiction that is contained in Appellant’s motion for rehearing and reconsideration.
Appellant cites Boyd v. Goff, 828 So. 2d 468 (Fla. 5th DCA 2002), and Monticello Insurance Co. v. Thompson, 743 So. 2d 1215 (Fla. 1st DCA 1999), in support of its argument that this Court has jurisdiction to review the trial court’s order granting Appellee’s motion for summary judgment. In Boyd, although the trial court’s order was labeled, “Order Granting Summary Judgment,” the body of the order contained language actually entering judgment for a party. Boyd, 828 So. 2d at 469. Thus, the order was final. Id. at 470. In Monticello Insurance Co., the appellate court did not have jurisdiction to review the appeal, because the trial court’s order stated only that the party was entitled to final summary judgment, and did not actually enter judgment for a party. Monticello Insurance Co., 743 So. 2d at 1215-16.
In this case, the order appealed from states, in its entirety, “This cause came on for consideration on the Plaintiff’s Motion for Final Summary Judgment and Declaratory Relief and the court having considered the motion it is hereby ORDERED AND ADJUDGED that the Motions [sic] are GRANTED.” (Notice of Appeal Ex. A.) Unlike in Boyd, the order does not enter judgment for a party. Instead, like Monticello Insurance Co. the order simply indicates that a party is entitled to have a judgment entered for it. Thus, the order is not a final order, and the Court does not have jurisdiction over this appeal.
Appellee moves for an award of appellate attorney’s fees pursuant to sections 627.736(8) and 627.428, Florida Statutes. In Arango v. United Automobile Insurance Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005), the Third District Court of Appeal quashed the order of the circuit court sitting in its appellate capacity that denied the insured’s motion for attorneys’ fees. While the case was on appeal at the circuit court level, the circuit court dismissed the appeal for the insurance company’s failure to timely file its brief. Id. at 321. The circuit court denied the insured’s motion for attorney’s fees on the basis that there was no prevailing party. Id. The Third District looked to section 627.428, which “mandates that an insured be awarded attorneys’ fees when he is the prevailing party on appeal in an action against his insurer.” Id. The court concluded that this includes “cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits.” Id. The insured was entitled to an award of attorneys’ fees, even though there was no decision on the merits, and the circuit court departed from the essential requirements of the law in denying the motion. Id. at 322.
Based on Arango, Appellee’s motion for attorneys’ fees is granted. In this case and Arango, the appeal was commenced by the insurer and dismissed without a decision on the merits. Thus, Appellee is entitled to an award of attorney’s fees and costs, conditioned on Appellee ultimately prevailing in the litigation. See generally Foley v. Fleet, 652 So. 2d 962, 963 (Fla. 4th DCA 1995) (“When a party moves for “prevailing party” attorney’s fees in connection with a non-final appeal or petition, this court normally grants the motion conditioned on the movant ultimately prevailing in the litigation.”).
Accordingly, it is hereby ORDERED and ADJUDGED as follows:
1. Appellant’s “Motion for Rehearing and Reconsideration of Court[‘s] Final Order Dismissing Appeal for Lack of Jurisdiction” is GRANTED. As noted above, the Court reconsidered its “Final Order Dismissing Appeal for Lack of Jurisdiction.” Having reviewed the issue again, the Court finds that it lacks jurisdiction and this appeal is DISMISSED. The Clerk of Court shall close this case forthwith.
2. “Appellee’s Motion to Tax Attorney Fees and Costs” is GRANTED, conditioned on Appellee ultimately prevailing in the litigation. (GAIL A. ADAMS, STAN STRICKLAND and DANIEL P. DAWSON, JJ.)
