16 Fla. L. Weekly Supp. 1036b

Online Reference: FLWSUPP 1611ZAYA

Insurance — Personal injury protection — Appeals — Timeliness — Where trial court entered final order dismissing amended complaint pursuant to plaintiff’s notice of voluntary dismissal and denying plaintiff’s motion to vacate final judgment that had been subject of prior appeal, plaintiff did not file a motion for rehearing or appeal of that order but reasserted motion to vacate during hearing on defendant’s entitlement to attorney’s fees, and trial court entered second order denying motion to vacate that did not meaningfully alter or amend prior order, appeal filed within thirty days of second order denying motion to vacate but five months after first order denying motion was not timely filed — No merit to argument that first order denying motion was legal nullity that court lacked jurisdiction to issue because plaintiff had taken voluntary dismissal before order was issued

TRAN CHIROPRACTIC & WELLNESS CENTER, INC., a/a/o LINDA ZAYAS, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 09-11763. Division X. L.T. Case No. 06-335619-CC. August 25, 2009. Counsel: Christopher K. Leifer and Philip A. Friedman, The Florida Law Group, P.A., Tampa, for Appellant. Jennifer Mandelbaum, Ramey & Kampf, P.A., Tampa, For Appellee.

ORDER DISMISSING APPEAL

(MARTHA J. COOK, J.) THIS CAUSE is before the court on Appellee State Farm Mutual Automobile Insurance Company’s motion to dismiss appeal for lack of jurisdiction. In its motion, State Farm contends that the April 6, 2008 order of the court merely restates the court’s order of November 17, 2007; therefore, the April 6, 2008 order did not re-open the door for an appeal and Appellant lost the right to appeal. We agree and dismiss the appeal for reasons set forth below.

A brief rendition of the bumpy history of this case is in order. In 2007, Tran filed a two-count complaint in the county court; one count was for declaratory action and one count sought payment for healthcare services rendered as a result of injuries Tran’s assignor Linda Zayas sustained in a covered accident. Upon learning that benefits had been exhausted, Tran took a voluntary dismissal on the count for payment of overdue benefits. On August 27, 2007, the trial court dismissed the remaining count for declaratory relief and entered a judgment in favor of State Farm. Tran then appealed the August 27, 2007 judgment. On appeal, this court concluded that dismissal was proper, but that Tran should be afforded leave to amend its complaint if it could. On remand, Tran exercised its right and filed an amended complaint on September 2, 2008.

On September 25, 2008, State Farm filed a motion to dismiss the amended complaint. On October 22, 2008, Tran filed a motion to vacate the August 27, 2007 final judgment that had been the subject of the earlier appeal. On October 23, 2008, the trial court held a hearing on the motion to dismiss the amended complaint. Although Tran had filed its motion to vacate, the trial court did not entertain argument on the motion. After the hearing, on November 14, 2008, Tran filed a notice of voluntary dismissal — without prejudice — of the amended complaint pursuant to Florida Rule of Civil Procedure 1.420. On November 17, 2008, the trial court entered a “Final Order of Dismissal and Amended Final Judgment.” This judgment not only dismissed the amended complaint, but also included language addressing Tran’s motion to vacate August 27, 2007 order. In so doing, the trial court effectively denied the motion to vacate. Tran did not file a motion for rehearing or an appeal of that order. On December 11, 2008, the trial court scheduled a hearing on State Farm’s motion to determine entitlement to attorney’s fees. Tran, without having filed another motion, filed a cross-notice of hearing on its motion to vacate [the August 27, 2007, final judgment]. Neither party provided this court with a transcript of the December 11th hearing.

Pursuant to that hearing, the trial court entered another order on April 6, 2009, again denying Tran’s motion to vacate [the August 27, 2007 final judgment] and without entertaining State Farm’s entitlement to attorney’s fees except to conclude that State Farm was the prevailing party. Tran then filed its second notice of appeal on May 5, 2009.

State Farm asserts that the notice of appeal is untimely because the April 6, 2009 order does not meaningfully alter or amend the November 17, 2008 order with regard to Tran’s motion to vacate the original judgment. Tran responds that the November 17, 2008 order was a nullity that the trial court lacked jurisdiction to enter because Tran had taken a voluntary dismissal of the amended complaint. We disagree with Tran on this issue.

We are not persuaded by Tran’s argument that the November 17, 2008 final judgment was a nullity by operation of Tran’s intervening notice of voluntary dismissal on November 13, 2007. Tran’s voluntary dismissal was, by its own terms, without prejudice. Pursuant to Florida Rule of Civil Procedure 1.420, voluntary dismissals are without prejudice unless the notice says otherwise. Being without prejudice, it did not divest the court of jurisdiction to enter further orders. But even if the notice did somehow operate to divest the court of jurisdiction to enter a formal order of dismissal, there remained Tran’s pending motion to vacate the August 2007 order, which the judgment also addressed, and of which Tran actively sought the trial court’s ruling. Were we to follow Tran’s argument that the trial court lost jurisdiction to consider the motion to vacate in November, 2008 to its logical conclusion, the trial court would have lost jurisdiction to enter an order in April, too. That Tran considers the April 6, 2008 order a proper exercise of the trial court’s jurisdiction is inconsistent with its position that the November 17, 2008 order is not a proper exercise of the trial court’s jurisdiction.

The November 17, 2008 final order clearly refers to Tran’s motion to vacate the August 2007 judgment. We express no opinion on the propriety of the trial court’s having entered the order without a hearing. But Tran filed neither a motion for rehearing of the final judgment nor an appeal of the final judgment, despite its claim that it is a nullity. The subsequent April 6, 2009 order simply restates the court’s denial of the motion to vacate. The time in which to file an appeal is not revived by obtaining a new order to the same effect as the original and then filing the notice of appeal within thirty days of the more recent order. See Gen. Motors Corp. v. Strickland, 913 So.2d 1227 (Fla. 1st DCA 2005).

ORDERED that the appeal is DISMISSED for lack of jurisdiction this 25th day of August, 2009. (Silver and Sexton, JJ., Concur.)