15 Fla. L. Weekly Supp. 962a
Insurance — Personal injury protection — Appeals — Amended judgment — Where insurer voluntarily dismissed appeal of final judgment after window for filing appeal had closed, time for filing appeal was not renewed by subsequent entry of amended final judgment and second amended final judgment that, in correcting error in calculation of interest and scrivener’s error in text, did not make material changes to judgment — In subsequent appeal, only amended portions of judgment may be challenged, and insurer is barred from contesting any issue that was or could have been raised in first appeal
MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. FRANCISCO ANTUNEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-297 AP. L.C. Case No. 06-3682 SP 25. August 12, 2008. On Appeal from the County Court in and for Miami-Dade County. Counsel: Scott Cole and Luisa M. Linares, Cole, Scott & Kissane, P.A., for Appellant. Carlos A. Lopez-Albear, Carlos A. Lopez-Albear, P.A.; Kevin Whitehead, Downs Brill Whitehead; and Virginia M. Best, Lopez & Best, for Appellee.
OPINION
(Before JIMENEZ, REYES and ADRIEN, JJ.)
(Per Curiam.) This is a PIP case which turns upon the timing of appeals, voluntary dismissals, and the effect of amended final judgments. We find that Appellant’s voluntary dismissal of its initial appeal acted as a procedural limitation concerning the matters it could challenge following the amended final judgments.
For purposes of this appeal, the issues before us began when Appellee Francisco Antunez prevailed in the trial court against Appellant Mercury Insurance Company of Florida. Mercury timely filed its appeal on December 13, 2006; but subsequently entered a voluntary dismissal of that appeal April 20, 2007.
On April 26, 2007, Mr. Antunez moved for entry of a corrected final judgment based on an incorrect calculation of interest. The trial court agreed with Mr. Antunez and entered an amended final judgment on May 10, 2007 in the amount of $9,349.17. Mercury filed an appeal from this amended final judgment on June 11, 2007.
On September 17, 2007, the trial court filed a second amended final judgment, since the May 10, 2007 judgment identified the wrong insurance company in the text of the judgment. On September 26, 2007, Mercury filed an amended notice of appeal.
Of primary concern to this court is the effect of Mercury’s April 20, 2007 voluntary dismissal of its appeal of the original final judgment. There is no doubt that time to appeal began running at the time of the November 13, 2006, final judgment. As a consequence, Mercury’s December 13, 2006 appeal was timely. However, at the time Mercury voluntarily dismissed its appeal on April 20, 2007, its window for filing an appeal had closed. Hence, Mercury was time barred from re-filing its appeal.
Mercury contends that the time for filing an appeal was renewed by the amended final judgment of May 10, 2007, and again with the second amended final judgment of September 17, 2007. We disagree. We find the subsequent judgments to be immaterial for purposes of restarting the time period for filing an appeal. To whatever extent they are material, only those portions of the judgment which are amended may be challenged on appeal.
Florida follows the majority rule that a material change to a judgment reopens the window for filing an appeal. DeGale v. Krongold, Bass & Todd, 773 So. 2d 630 (Fla. 3d DCA 2000); Betts v. Fowelin, 203 So. 2d 630, 631 (Fla. 4th DCA 1967.) However, minor, formal, or immaterial changes will not reopen the window. DeGale, 773 So. 2d 630. To determine if the amendment materially changes the original judgment and order, this Court may look to St. Moritz Hotel v. Daughtry, 249 So. 2d 27 (Fla. 1971). There, the Florida Supreme Court stated:
[a]n amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. . . . ‘Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.’
St. Moritz, 249 So. 2d at 28 (quoting Federal Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12, 73 S. Ct. 245, 97 L. Ed. 245 (1952)); see also B.G. Leasing, Inc. v. Heider, 372 So. 2d 184 (Fla. 3rd DCA 1979); Betts, 203 So. 2d at 631-32.
In the present instance, the amended final judgments of May 10, 2007 and September 17, 2007, amounted to little more than clerical changes. The first amended judgment recalculated the amount of pre-judgment interest from $753.84 to $973.17. The second amended final judgment corrected a scrivener’s error in the text of the amended final judgment which identified an unrelated party. These changes are immaterial under St. Moritz. Accordingly, the time to appeal began running at the time of the November 13, 2006, final judgment. As a consequence, Mercury’s December 13, 2006, appeal was timely. However, once that appeal was voluntarily dismissed April 20, 2007, Mercury was time barred from re-filing its appeal in toto. Rather, Mercury was limited in its subsequent appeals to challenging the amended portions of the judgment. Caldwell v. Wal-Mart, 980 So. 2d 1226 (Fla. 1st DCA 2008). This Court will not review for error that could have been raised in the original. Id. (citing Beal Bank S.S.B., Inc. v. Sherwin, 829 So. 2d 961 (Fla. 4th DCA 2002)); First Cont’l Corp. v. Khan, 605 So. 2d 126 (Fla. 5th DCA 1992).
On the foregoing, Mercury is barred from contesting any issue that was or could have been raised in its first appeal. More specifically, Mercury is barred from contesting whether Mr. Antunez met pre-suit requirements of section 627.736(11), Florida Statutes.
We AFFIRM and instruct the trial court to award appellate attorney’s fees to Mr. Antunez pursuant to section 627.428, Florida Statutes (2008).
