17 Fla. L. Weekly Supp. 1173a

Online Reference: FLWSUPP 1712MARTInsurance — Personal injury protection — Appeals — Appellant may not raise issues on appeal which, although presented to trial court, were not ruled upon in the order appealed — Confession of error — Withdrawal — Florida supreme court’s stay of certiorari proceeding regarding district court of appeal opinion upon which medical provider based confession of error is not sufficient grounds for withdrawal of that confession of error, as district court’s opinion remains binding in absence of stay or recall of mandate — However, upon proper motion within court’s term, it may be just for court to recall mandate or stay issuance of mandate pending supreme court’s resolution of certiorari proceedings in related cases — Summary judgment — Opposing affidavit — Based on confession of error as to trial court’s striking of opposing affidavit and report filed by peer review doctor due to doctor’s failure to personally examine insured, entry of final summary judgment in favor of provider is reversed

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MIAMI MEDICAL GROUP, INC., a/a/o YAMILESIS MARTINEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-547 AP & 09-251 AP. L.C. Case No. 05-12078 CC-05 (08). August 13, 2010. An Appeal from the County Court for Miami-Dade County, Florida, the Honorable Wendell Graham presiding. Counsel: Thomas L. Hunker, for Appellant. Virginia M. Best, for Appellee.

(Before GROSS, BLAKE, LEBAN, JJ.)

INTRODUCTION

(LEBAN, Judge.) This appeal began as what appeared to be a garden variety personal injury protection (PIP) case, but, as will be seen, the garden has become a thicket which we will undertake to shear down to its essentials. Indeed, the case can, and will, be resolved on Appellee’s appropriate CONFESSION OF ERROR, which, notwithstanding Appellee’s attempt to withdraw its confession, we accept as well taken as to the first, and only appropriate, point raised by Appellant, hereinafter UNITED, in this appeal.

PROCEDURAL HISTORY

As with virtually all PIP cases, the insured, Yamilesis Martinez, was involved in a motor vehicle accident, this one on October 6, 2004. She incurred medical bills at Appellee Miami Medical Group Inc., to whom she later assigned her benefits. Thereafter, the usual examination under oath, Independent Medical Examination (IME), and submission of affidavits by Plaintiff, Appellee, attesting to the reasonableness, relatedness, and necessity (RRN) of the medical treatment, ensued.

While not germaine to this appeal, as will be demonstrated, Ms. Martinez purportedly signed a Disclosure and Acknowledgement form in blank (see A-4, Ex. 6 at 26-27), and UNITED’S IME physician Dr. Vicente G. Lopez, M.D., issued an IME cut off letter dated December 22, 2004, asserting that no further treatment would be RRN. A-4 Ex. 3.

Later, on February 18, 2005, Dr. David B. Goldberg, M.D., conducted a Peer Review of Ms. Martinez’s treatment records, but concluded, contrary to Dr. Lopez, that much of the pre-IME treatment was unreasonable, unrelated, and unnecessary. A-2 at 22; A-4, Ex. 4.

Not surprisingly, UNITED thereafter determined that no amount was due and owing to Appellee because the small amount of RRN treatment was less than the policy deductible.

Appellee provider filed its complaint on August 2, 2005, and, shortly thereafter, moved to strike Dr. Goldberg as a witness, arguing that his Peer Review Report was not “a valid report” under Section 627.736 (7)(a), Florida Statutes. On August 21, 2006, the trial judge granted Appellee’s motion and struck Dr. Goldberg and his Peer Review for reasons that will more fully be set forth below. See R. 42-44.

Appellee moved for summary judgment on June 17, 2008, relying upon its affidavits as to RRN and, on October 6, 2008, after hearing on Appellee’s summary judgment motion (which was combined with UNITED’S motion for reconsideration of the trial court’s earlier order striking Dr. Goldberg and his peer review), the trial court denied UNITED’S motion to reconsider its striking of Dr. Goldberg and his Peer Review, and granted Appellee’s Motion for Final Summary Judgment, which is the order from which this appeal arises. See Note 2, infra.

On May 26, 2009, Appellant, UNITED AUTO, filed its Initial Brief, raising three points on appeal. Nearly six months later, on November 23, 2009, Appellee filed a CONFESSION OF ERROR, which states, in pertinent part, that Appellee “hereby confesses error as to the Order Granting Summary Judgment and to the Final Summary Judgment entered thereon. All issues raised by Appellant that are the subject of this appeal are therefore returned to the trial court to be litigated.” For reasons not apparent from the record, no action was taken on Appellee’s CONFESSION OF ERROR and, on or about July 27, 2010, more than eight months later, Appellee filed its MOTION TO WITHDRAW CONFESSION OF ERROR AND FOR LEAVE TO FILE ANSWER BRIEF.¹

THE CONFESSION OF ERROR AND MOTION TO WITHDRAW THE CONFESSION

Before addressing the efficacy of Appellee’s CONFESSION OF ERROR, the Court must address Appellee’s pending motion, filed more than eight months later, on or about July 27, 2010, entitled “MOTION TO WITHDRAW THE CONFESSION OF ERROR AND FOR LEAVE TO FILE ANSWER BRIEF.” In said motion to withdraw, Appellee addresses the three points raised in Appellant’s Initial Brief which Appellee, in its motion, summarizes as follows:

A. United’s Point I on Appeal (Peer Review Issue).

B. United’s Point II on Appeal — Effective Date of IME Cutoff.

C. United’s Point III on Appeal (Disclosure and Acknowledgment Form Issue).

While Appellee’s MOTION TO WITHDRAW CONFESSION OF ERROR is directed to Appellant’s three points on appeal, the Court finds, for the reasons that follow, that there is but one point involved in this appeal, to wit: whether the trial court erred in granting final summary judgment based upon its finding that the peer review doctor was required to physically examine the claimant. A review of the FINAL SUMMARY JUDGMENT, as well as the transcript of the hearing thereon, clearly reveals that the only issue addressed by the parties below, and the only issue ruled upon by the trial court, was whether the validity of Appellant’s Peer Review was sufficient to create a genuine issue of material fact. The trial court ruled that it was not.

The FINAL SUMMARY JUDGMENT which gives rise to this appeal² states in material part as follows:

After consideration of the argument by counsel for the respective parties and review of the Affidavits filed of record by Plaintiff and, in the absence of affidavits filed by the Defendant in opposition to Plaintiff’s Motion for Summary Judgment filed on June 27, 2008, on the only remaining issues of reasonable, related and necessary and noting that, there are no genuine issues of law or fact to preclude entry of Summary Judgment. . . Summary Judgment [is] entered in favor of Plaintiff. . . . [Emphasis added].

In addition, an examination of the transcript of the October 6, 2008, hearing on Appellee’s Motion for Summary Judgment reveals that the entire basis presented and argued by the parties on the motion was the purported absence of a valid peer review in opposition to Appellee’s Motion for Summary Judgment.³ The record before this Court further reveals that the singular reason for the trial court’s granting of Summary Judgment was predicated upon its previous, August 21, 2006, ORDER ON PLAINTIFF’S MOTION TO STRIKE PEER REVIEW OF DAVID B. GOLDBERG. T. 100-102. In this order, the trial court based its decision to strike the peer review of Dr. Goldberg on its “fail[ure] to meet the requirement of Section 627.736(7)(a) Florida Statutes due to the failure of the record to indicate that he examined Ms. Martinez, or that the treatment record reviewed were [sic] complete.” T.100, para.1. The order striking Dr. Goldberg’s peer review goes on to find that the trial court “does not have before it the valid report of a physician obtained prior to the suspension of benefits.” T.100-101, para. 2. Next, the order recites the now eschewed litany of caselaw rejected by the District Court of Appeal of Florida, Third District, in United Automobile Insurance Company v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So.3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (en banc), and United Automobile Insurance Company v. Metro Injury & Rehab Center, a/a/o Magda Davis, 16 So.3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a]. T.101 para. 3. Thus, this Court finds and concludes that the sole basis for the lower court’s entry of summary judgment, and hence this appeal, is whether that court erred in granting Final Summary Judgment based upon the failure of UNITED to submit a valid peer review in opposition to Appellee’s motion for summary judgment. As will be seen by the plentiful and settled law set forth below, the fact that Appellant has chosen to raise additional points on appeal, perhaps in an abundance of caution, that were not ruled upon by the trial court in the order appealed neither permits the parties, nor allows this Court, to address those issues. Accordingly, we find that Appellee’s CONFESSION OF ERROR which, by its own terms, is directed to the “Order Granting the Summary Judgment and to the Final Summary Judgment entered thereon,” is limited to the Peer Review issue, and to it alone.

MOTION TO WITHDRAW CONFESSIONON POINTS II AND III

The thicket first referred to at the outset of this opinion partly arises from UNITED’S raising in its Initial Brief of Point II (the IME cut off date issue) and Point III (the Disclosure & Acknowledgement Form issue). As the Court has previously discussed, while these issues were indeed raised in Appellee’s Motion for Summary Judgment, they were never addressed at the hearing thereon, nor, more importantly, ruled upon by the trial court. Nor are those issues even addressed in the trial court’s final summary judgment order from which this appeal arises. It is axiomatic that only issues ruled upon may be raised on appeal:

We cannot rule for the first time on the merits of a case when the trial court has not. An appellate court is reactive; it can only review asserted errors made by lower tribunals such as courts and administrative agencies. Appellate courts may not decide issues that were not ruled on by the trial court in first instance. McGurn v. Scott, 596 So.2d 1042 (Fla. 1992).

Sierra by Sierra v. Public Health Trust of Dade County, 661 So.2d 1296, 1298 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2448a]. [Emphasis added].

More recently, the Third District stated it thus:

Cohen, however, failed to preserve this issue for appellate review. “For an issue to be preserved for appeal, . . . ‘it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.”

Roth v. Cohen, 941 So.2d 496, 500 (Fla. 3d DCA 2006). [Citations omitted; emphasis added].

Thus, even if the D&A and IME cut off issues were raised by Appellee in its summary judgment motion, they were never presented to the trial judge for a ruling and, accordingly, may not be raised by UNITED in this appeal. See Akers v. City of Miami Beach, 745 So.2d 532, 532 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2704a] (“this court should not ordinarily decide issues not ruled on by the trial court in the first instance. . .”.); Alamagan Corp. v. Daniels Group, Inc., 809 So.2d 22, 26 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D289a] (“an appellate court may not decide issues that were not ruled on by a trial court in the first instance.”); and see, Bland ex rel. Coker v. Healthcare and Retirement Corp. of America, 927 So.2d 252, 257 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1291a]; Nelson v. Pinellas County, 343 So.2d 65 (Fla. 2d DCA 1977), reversed in part on other grounds, 362 So.2d 279 (Fla. 1978); Miller v. Miller, 709 So.2d 644, 645 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D1097b]; Mendelson v. Great Western Bank, 712 So.2d 1194, 1197 (Fla. 2d DCA 1998); Business Success Group, Inc. v. Argus Trade Realty Investment, Inc., 898 So.2d 970, 972 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D542a].

Since the trial court in the case at bar never ruled on UNITED’S Points II & III, UNITED may not raise these issues in the present appeal, and, accordingly, Appellee’s CONFESSION OF ERROR is inapplicable to these issues; accordingly, this Court need not reach Appellee’s Motion to Withdraw Appellee’s ineffective confession as to these points.

THE PEER REVIEW ISSUE

The same cannot be said with respect to UNITED’S Point I in which it claims that the trial court’s final summary judgment must be reversed. We agree. In fairness to the trial court, in October of 2008, the law on peer reviews as constituting “valid reports” whether based on a physical examination by the peer review doctor or not, was not settled. Nevertheless, it is a basic principle of appellate law that the law in effect at the time an appeal arrives to the appellate court for decision controls, even if that law was not in effect at the time of the trial court’s ruling. Since the trial court’s summary judgment ruling, the District Court of Appeal of Florida, Third District, has definitively settled the law on this issue, which compels reversal of the final summary judgment entered below. See e.g., United Automobile Insurance Company v. Santa Fe Medical Center a/a/o Telmo Lopez, 21 So.3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (review pending, Fla. SC 09-2100); United Automobile Insurance Company v. Metro Injury & Rehab Center a/a/o Magda Davis, 16 So.3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a] (review pending, Fla. SC 09-1946).⁴

It is hornbook appellate law that “[a]ppellate courts are generally required to apply the law as it exists at the time of the appeal, or at the time of the appellate disposition, and not the law that existed at the time of the rendition of the final judgment from which the appeal was taken, or which the case was tried.” 3 Fla.Jur. 2d Appellate Review, Section 413. See, e.g., Nash v. General Motors Corporation Inc., 734 So.2d 437, 440 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D1031a] (“The trial judge in this case did not have the benefit of the supreme court’s Stellas decision when he made his ruling. *** Nonetheless, ‘[d]ecisional law and rules in effect at the time an appeal is decided govern the case even if there has been a change since time of trial.’ ”) [Citations omitted]; accord, Lower Florida Keys Hospital District v. Littlejohn, 493 So.2d 467, 468 (Fla. 3d DCA 1986) (“an appellate court must apply the law prevailing at the time of its decision”); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467, 468 (Fla. 1978) (“disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.”).

Notwithstanding these settled principles of appellate law, Appellee, in its MOTION TO WITHDRAW THE CONFESSION OF ERROR, argues that the Santa Fe line of cases is pending certiorari review in the Florida Supreme Court “and have been tagged. . . for future review pending” the Florida Supreme Court’s resolution of the case of Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, 990 So.2d 633 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2146a] (certiorari accepted, Case No. SC 08-2036, August 31, 2009). See MOTION TO WITHDRAW at paragraph 4. Appellee candidly admits, however, that the Custer issue “is not factually analogous to the issues involving the peer review IME and medical report issues. . . which are the subject of the Santa Fe en banc decision and related cases.” Id. at para. 6. Nevertheless, Appellee asserts that the Florida Supreme Court in the Custer line of cases “decided to stay all peer review related cases generated by Santa Fe et. al. and have tagged all such cases for future review pending its decision in the Custer Masis case.” Id. at para. 7. The Appellee points to the January 5, 2010 stay order of the Florida Supreme Court. It is important to note, however, that the Supreme Court’s stay reads as follows:

The proceedings in this Court in the above case are hereby stayed pending disposition of Custer Medical Center a/a/o Maximo Masis v. United Automobile Insurance Company, Case No. SC 08-2036, which is pending in this Court.

Thus, the Florida Supreme Court has not, by its January 5, 2010 order, recalled the mandate in the Santa Fe cases, but merely stayed the Santa Fe certiorari proceedings in the Florida Supreme Court, pending resolution of Custer, an opinion which, as Appellee correctly and candidly admits, is not factually analogous to the issues raised in Point I in the case at bar. To the extent that Appellee’s MOTION TO WITHDRAW THE CONFESSION is founded upon a premise that the Third District’s Santa Fe cases, upon which Appellee’s CONFESSION OF ERROR is properly based, are themselves stayed or somehow not final or binding pending the Supreme Court’s discretionary review in Custer, this Court rejects that premise. This Court has ascertained that the mandates in the Santa Fe⁵ line of cases have all issued by the District Court of Appeal of Florida, Third District, and those cases are, indeed, binding on this Court and remain in full force and effect. They are controlling decisions on Point I in this appeal, and absent a stay or recall of mandate, neither of which has occurred nor been sought, both parties, as well as this inferior appellate court, must follow and abide by them. See, State v. McKinnon, 540 So.2d 111 (Fla. 1989); City of Miami v. Arostegui, 616 So.2d 1117 (Fla. 1st DCA 1993). As McKinnon and Arostegui demonstrate, the pendency of certiorari review in the Florida Supreme Court to review a District Court of Appeal decision does not preclude issuance of mandate and the parties must comply with the District Court’s mandate absent a stay or recall of the mandate.

Yet another reason exists for this Court not to permit withdrawal of the Appellee’s CONFESSION OF ERROR due to the pendency of certiorari in Custer. As any seasoned appellate practitioner knows, “a writ of certiorari may be dismissed or quashed because it was improvidently or inadvertently granted. It is considered improvident to grant the writ where substantial justice has been done even though some procedural irregularity has occurred.” Am Jur Certiorari Section 88 Writ Improvidently Granted; see also Am Jur Appellate Section 366(B)(6)(b) Dismissal of Writ as Improvidently Granted:

A writ of certiorari will be dismissed as improvidently granted when the Court discovers, after granting the writ, circumstances which, if known earlier, would have led to denial of the writ of certiorari.

For example, in Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 78-9, 75 S.Ct. 614, 618-19 (1955), the United States Supreme Court recognized that “[t]here is nothing unique about such dismissal even after full argument. There have been more than sixty such cases and on occasion full opinions have accompanied the dismissal. The circumstances of this case may be different and more unusual. But this impressive practice proves that the Court has not hesitated to dismiss a writ even at this advanced stage where it appears on further deliberation, induced by new considerations, that the case is not appropriate for adjudication.” [Footnote omitted; emphasis added].

The Third District itself has recognized the practice of the Florida Supreme Court’s dismissing a writ of certiorari as “improvidently granted.” See, e.g., Crescent Miami Center, LLC v. Department of Revenue, 857 So.2d 904, 908 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2116a] (“The Florida Supreme Court initially granted certiorari, but later dismissed the appeal stating ‘jurisdiction was improvidently granted.’ ” [Citation omitted]. And, it is not uncommon for a District Court of Appeal to dismiss a writ as improvidently granted even in a PIP case, on certiorari review of a Circuit Court appellate decision. See, Progressive Specialty Insurance Company v. Biomechanical Trauma Ass’n, Inc., 785 So.2d 667 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1194c], review dismissed, 790 So.2d 1101 (Fla. 2001). Indeed, cases are legion where the Florida Supreme Court has discharged a writ of certiorari as improvidently granted even after full briefing and oral argument for a myriad of reasons, both spoken and unspoken. E.g., Courtelis v. Lewis, 348 So.2d 1147 (Fla. 1976).

For these reasons, this Court is not persuaded that the pendency of the Custer certiorari review is sufficient grounds to permit Appellee in the case at bar to withdraw its CONFESSION OF ERROR, a confession which was, in November of 2009 when made, and remains today, valid and well taken.

APPELLEE IS NOT WITHOUT A REMEDY

Having denied Appellee’s MOTION TO WITHDRAW CONFESSION OF ERROR AND FOR LEAVE TO FILE ANSWER BRIEF, this Court is cognizant of Appellee’s plight: What if, after reversal of the trial court’s summary judgment order, the Florida Supreme Court in the Custer line of cases (and in the Santa Fe cases), changes the law and quashes the Third District cases upon which the Appellee’s initial CONFESSION OF ERROR is predicated? The mandate having issued in the Santa Fe cases (see n. 5, supra), pursuant to Rule 9.340(a), Fla.R.App.P., similarly our mandate would, in the normal course, issue from this Court’s reversal. Might not such a scenario work a manifest injustice to the Appellee? In response, as well as in anticipation of Appellee’s raising the spectre of such an injustice, this Court is reminded of the maxim: “There is no principle of law more fundamental than that which declares for every wrong there is a remedy.” Perkins v. Pare, 352 So.2d 64, 64 (Fla. 4th DCA 1977).

That remedy lies in the proper and timely seeking of a recall or stay of this Court’s mandate upon proper motion.

In a remarkably similar (albeit immaterially distinguishable) case, the Second District exhaustively set forth the circumstances and procedure to be employed, as well as the Court’s authority, to recall a mandate, or stay its issuance, to await a higher Court’s resolution of a dispositive case raising the same issue. Thus, in Mitchell v. State, __ So.3d __ (2009 WL 2841189) (Fla. 2d DCA Sept. 2, 2009) [34 Fla. L. Weekly D1794b], (Mitchell II)Judge Altenbernd addressed the following issue:

Can a district court exercise its discretion to recall mandate and stay proceedings. . . when the dispositive issue in the case is on review in the United States Supreme Court? We conclude that so long as the State asks this court to recall mandate and stay the case during our term of court and during the period in which the State could have filed for review in the U.S. Supreme Court, we have jurisdiction to recall the case and return it to the pipeline of similar cases awaiting the outcome of the U.S. Supreme Court. Id. at 1.

In Mitchell, the issue involved was the efficacy of Florida’s Miranda Warnings, which had been held insufficient by the Florida Supreme Court in Powell v. State, 998 So.2d 531 (Fla. 2008) [34 Fla. L. Weekly S2a], but the United States Supreme Court had accepted certiorari review; the High Court had not yet issued its opinion in Powell⁶when the Second District was called upon to review Mr. Mitchell’s murder conviction, and accordingly, that court reversed his conviction. See, Mitchell v. State, 2 So.3d 287, 289 (Fla. 2d DCA 2007). (Mitchell I)After the Second District issued its reversal of Mr. Mitchell’s conviction, the State moved that court to stay the issuance of its mandate while it sought review in the Florida Supreme Court. The Second District granted the stay and the State filed a timely notice to invoke discretionary review in the Florida Supreme Court; however, that Court took no action, “essentially leaving it in the pipeline as it considered the identical issue in Powell.” Mitchell II at2.

For reasons that remain unclear, the Florida Supreme Court denied Mitchell’s discretionary review petition and, accordingly, the Second District issued its mandate. Shortly thereafter, the United States Supreme Court granted certiorari in Powell and, in light of that development, the State moved the Second District after it had issued its mandate, to recall the mandate and stay proceedings pending disposition of Powell in the United States Supreme Court. The Second District granted the State’s motion and recalled its mandate, citing Rule 9.340(a), Fla.R.App.P., which provides as follows:

Rule 9.340. Mandate

a) Issuance of mandate. Unless otherwise ordered by the Court or provided by these rules, the Clerk shall issue such mandate or process as may be directed by the Court after expiration of 15 days from the date of an order or decision.

The court emphasized that portion of the rule that provides “[u]nless otherwise ordered by the court,” and held “the judges of this court have the power, at least in some circumstances, to control the issuance of mandate by special order.” Mitchell II, at 3.

It is, however, important to note that the Second District was careful to observe the caveat that “the finality of a mandate is cushioned by the discretion to recall mandate during the term of court in which it is issued.” Id.⁷ [Emphasis added]. The Mitchell court also held: “Thus, it is well established that the judges of a court have the power to recall a mandate so long as they take that action within the term of court.” Id. [Citation omitted].

The court went on to cite authority, limiting such power to recall its mandate “in a proper case. . . for the purpose of making [its opinion] accord with law and justice.” Id. [Citations omitted]. Finding such a purpose to exist in the case before it, the Mitchell court did indeed recall its mandate pending the United States Supreme Court’s resolution of Powell, but in doing so, also observed that “when a ruling is debatable, normally the value of finality should cause this court to refuse to recall a mandate merely for the purpose of waiting the possibility that the law will change in the near future.” Id. at 5.

Thus, this Court concludes that, upon proper motion within the term of court, it may be just to recall issuance of its mandate, if already issued, or to stay issuance of mandate pending resolution of the Custer certiorari proceedings in the Florida Supreme Court and the Santa Fe line of cases thereafter.⁸

For these reasons, the Appellee is not without a remedy should it timely and properly demonstrate that this Court should stay issuance of its mandate.

ON CONFESSION OF ERROR

Accordingly, based upon Appellee’s CONFESSION OF ERROR, which this Court accepts, and upon the authority of United Automobile Ins. Co. v. Santa Fe Medical Center, a/a/o Telmo Lopez, 21 So.3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b] (en banc)(review pending, Fla. SC 09-2100); and United Automobile Ins. Co. v. Metro Injury & Rehab Center a/a/o Madga Davis, 16 So.3d 897 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1516a] (review pending, Fla. SC 09-1946), we dispense with oral argument⁹ and reverse the trial court’s entry of Final Summary Judgment, and further conclude that Dr. Goldberg’s Peer Review was improperly stricken and created a material issue of genuine fact, precluding summary judgment.

CONSOLIDATED ATTORNEY’S FEE APPEAL (CASE NO. 09-251)

Inasmuch as Appellee is not the prevailing party in this appeal, we further reverse the award of attorney’s fees and costs entered below. Dooley and Mack Constructors, Inc. v. Buildtec Const. Group, Inc., 983 So.2d 1243, 1244 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1657a].

THE PRUNING OF THE GARDEN

Finally, and returning to the motif with which this opinion began, this Court has endeavored to clear the thicket that the parties would have sowed to this “garden variety” PIP case that was presented when this appeal began, or, “paraphrasing Mr. Justice Cardozo, to spread the study of horticulture to unaccustomed fields.” United States v. Constantine, 296 U.S., 287, 299, 56 S.Ct. 223, 228, 80 L.Ed. 233, 241 (1935) (Cardozo, J., dissenting).” Banderas v. Banco Cent Del Equador, 461 So.2d 265, 269 (Fla. 3d DCA 1985). We thus reverse the Final Summary Judgment and remand this cause to the trial court for further proceedings consistent with this opinion. (Gross, J., Blake, J., concur.)

__________________

¹Appellant has filed a RESPONSE IN OPPOSITION which, based upon the analysis contained in this opinion, this Court need not address.

²The Appellant’s notice of appeal identifies the order appealed as “the order filed by this [lower] Court on October 9, 2008. . . . This is a Final Judgment for medical benefits.”

³Appellee’s Motion for Summary Judgment raises three issues: (1) The Peer Review Issue (T. 69-74); (2) The disclosure and acknowledgment form (T. 74-86); and (3) the IME cut off issue (T. 86). It is clear, however, that the Peer Review Issue is the predominate one, Appellee observing therein that “the Peer Review was stricken, therefore, Defendant has no evidence to challenge the Affidavits of the Plaintiff. . .”. See T. 70, para. 2. Moreover, a review of the transcript of the October 6, 2008, hearing on the summary judgment motion reveals that counsel for Appellee pointed out that the trial judge previously “struck the peer review and the Court entered a very detailed Order,” and that “defendant has filed nothing in opposition to our Motion for Summary Judgment.” See appendix to Initial Brief, A-2, page 6. Appellee below argued that the striking of Dr. Goldberg’s Peer Review Affidavit was correct in that “it was not a valid report.” Id. at 7. In response, Appellant (UNITED) asserted that the court must reconsider the striking of Dr. Goldberg’s Peer Review Affidavit. Id. at 12. UNITED further argued that “the peer review Doctor does not have to do an IME himself.” Id. at 13. UNITED presented no argument whatsoever on the disclosure and acknowledgment issue nor the IME cut off issue and the trial judge refused to reconsider its August 21, 2006, order striking Dr. Goldberg’s peer review and, accordingly, granted summary judgment for Appellee solely on the basis of the peer review issue: “I’m not going to change the ruling. I’m going to keep it stricken. . . . and therefore grant [Plaintiff’s] motion.” Id. at 23.

⁴Without adding to this already lengthy opinion, suffice it to say that the just-cited opinions hold that a “peer review” is a “valid report” pursuant to section 627.736(7)(a), Florida Statutes, and need not be based upon a physical examination by the peer review physician.

⁵Mandate issued in Santa Fe on December 4, 2009; mandate issued in Metro Injury and Rehab Center on October 5, 2009.

⁶The Court ultimately reversed the Florida Supreme Court and held that Florida’s Miranda Rights satisfied Constitutional standards concerning advice of the right to counsel during questioning. Florida v. Powell, 559 U.S. ____ (2010).

⁷For guidance, this Court observes that its “term of court,” for the Spring Term commences on the second Tuesday of May and, for its Fall Term, it commences on the second Tuesday of November. See Sections 26.21 and 26.32, Florida Statutes (2009).

⁸The only case found where a confession of error was successfully sought to be withdrawn as “erroneous” is Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1989a], but Johnson is clearly distinguishable in that the confession made by the State there was demonstrably erroneous at the time it was made, which, as demonstrated above, is not the situation in the case at bar. Again, the Santa Fe line of cases was and remains controlling law for this Court unless and until it is changed by the Florida Supreme Court.

⁹Pursuant to Rule 9.320, Fla.R.App.P., the Court “[o]n its own motion. . . may. . . dispense with oral argument.” See Damora v. Givotovsky, 301 So.2d 37, 37 (Fla. 4th DCA 1974); Rodriguez Sanchez v. State, 503 So.2d 436, 437 (Fla. 4th DCA 1987).