16 Fla. L. Weekly Supp. 1016a
Online Reference: FLWSUPP 1611 FALC NOT FINAL VERSION OF OPINION
Subsequent Changes at 17 Fla. L. Weekly Supp. 79a
Appeals — Certiorari — Discovery order — Insurance — Independent medical examinations and peer reviews prepared by insurer’s expert witness for six months prior to examination of insured
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. COCONUT GROVE CHIROPRACTIC, INC., F/K/A COCONUT GROVE CHIROPRACTIC, P.A., A/A/O ISABELLE FALCONI, GUARDIAN AND NEXT BEST FRIEND OF ISHANI FALCONI, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-0140-AP. L.C. Case No. 08-5482-SP-25-04. June 23, 2009. A petition for Writ of Certiorari, from the County Court of the Eleventh Judicial Circuit, Judge Nuria Saenz. Counsel: Lara J. Edelstein, for Appellant. George A. David, George A. David, P.A., Coral Gables, for Appellee.
(Before FRIEDMAN, MUIR and BAILEY, JJ.)
Petition denied.
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(MUIR, J., dissenting.) This cause came before the court upon the Respondent’s (Coconut Grove Chiropractic Center, Inc.’s) Motion to Dismiss Petition for Writ of Certiorari.
Filed before the court, sitting in its appellate capacity in panels of three, is a petition for writ of certiorari challenging a discovery order that overruled objections to discovery from the expert witness involving the production of all IME and Peer Review reports prepared by the expert for six months prior to her examination of the insured in the instant case. This decision denies the petition, without requiring a response.
The respondent, a medical services provider, did not wait for the circuit court’s required review, pursuant to Rule 9.100(f) of the Florida Rules of Appellate Procedure.
Rule 9.100(f) directs that whenapetition is filed in the circuit court for review of non-final orders of lower tribunals or for certiorari jurisdiction pursuant to Rule 9.100 of the Florida Rules of Appellate Procedure, the circuit court clerk shall forthwith transmit the petition to the administrative judge of the appellate division, or other appellate judge or judges asprescribed by administrative order, for a determination asto whether an order to show cause should be issued. Fla. R. App. P. 9.100(f)(3). The circuit court is to consider the petition for certiorari and determine whether the petition demonstrates a preliminary basis for relief, or a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal.
There isno specific authority for motions to dismiss in the appellate rules, unlike the Florida Rules of Civil Procedure, and such motions invite an extra response from the petitioner pursuant to Florida Appellate Rule 9.300, that allows a party ten days after service of the motion to serve only “1 response.” See Rule 9.300, Fla. R.App. P. The petitioner notes that the respondent served its motion to dismiss with a motion for attorneys’ fees, and the petitioner suspects that extra attorneys’ fees may be a motivating factor.
The comments to the appellate rules state that:
“Specific reference to motions to quash or dismiss appeals contained in former rules 3.9(b) and (c) has been eliminated as unnecessary. It is not intended that such motions be abolished. Courts have the inherent authority to quash frivolous appeals, and subdivision (a) (of Rule 9.300) guarantees to any party the right to file a motion.
The undersigned, however, believes that the motion to dismiss filed in this case is unnecessary in view of the other procedures provided for the circuit court’s consideration in certiorari review.
Fla. App. P. 9.100(g) puts the burden on a petitioner for a writ of certiorari to provide a basis for invoking the jurisdiction of the circuit court, and allows the circuit court to dispense with a response from the opposing party and to simply deny the discretionary review sought, leaving the issue for review through an appeal from a final judgment. If the circuit court sitting in its appellate capacity rules that a preliminary basis for relief is demonstrated, the circuit court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. The respondent then has a chance to provide opposition to the petition, including a lack of jurisdiction.
Rule 9.100(k) gives 20 days for a petitioner for certiorari review to reply to the opposing party’s court ordered response. A respondent who fails to wait for a court order either denying the petition outright, or a court order requiring a response to a certiorari petition, shortens the petitioner’s time to reply to ten days from the 20 days allowed by Rule 9.100(k), and unnecessarily prolongs the process if the circuit court ultimately denies the motion to dismiss and orders a response to the petition on the merits.
Moreover, the moving party for dismissal will have additional legal expenses if the motion is denied, and a response to a petition for certiorari repeats the same arguments, already raised in the motion to dismiss.
There may be cases such asthis when an appellate court would have denied or dismissed a petition, but on receiving a motion to dismiss the petition, the court then waits for ten days pursuant to Fla. App. R.P. 9.300 to provide an opportunity for a petitioner to respond to a motion to dismiss, again prolonging a finaldisposition of the initial petition for certiorari.
Motion practice in the appellate courts considering discretionary review could be an effort to thwart established procedures when the circuit court judges are qualified to make their own initial decisions involving jurisdiction on review of a petition for awrit of certiorari. Motions to dismiss should be reserved for rare cases seeking certiorari review.
Unlike my esteemed colleagues, the undersigned judge finds that the court has jurisdiction to review the matters raised in the pending petition for a writ of certiorari, and would deny the motion to dismiss and defer the issue of attorneys’ fees until the petition for certiorari is resolved on the merits.
The undersigned would also require the responding party, Coconut Grove Chiropractic Center, Inc., to file its response on the merits of the petition for a writ of certiorari within 30 days of the date of the issuance of this order.
The motion to dismiss should be stricken as premature until an appellate court requires a response to the initial petition, which my colleagues declined to do.
