17 Fla. L. Weekly Supp. 79a
Online Reference: FLWSUPP 1702FALCAppeals — Recall of mandate — Motion to recall mandate is granted where insurer did not receive opinion prior to issuance of mandate, and motion to recall was filed within term that mandate issued — Motion for rehearing of opinion, which denied certiorari challenge to order overruling objections to discovery of independent medical examinations and peer reviews performed by insurer’s expert, on ground that differing opinion has been rendered by another circuit court panel is denied
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) and for Miami-Dade County. Case No. 09-140 AP. L.T. Case No. 08-5482 SP 25 04. November 10, 2009. Counsel: Andrea Harris, for Petitioner. George A. David, George A. David, P.A., Coral Gables, for Respondent.
ORDER GRANTING IN PART AND DENYINGIN PART PETITIONER’S MOTION TO RECALL MANDATE TO VACATE ORDER DENYING PETITION AND TO REPUBLISH ORDER DATED JUNE 23, 2009AND/OR MOTION FOR REHEARING AND/OR CLARIFICATION
[Original Opinion at 16 Fla. L. Weekly Supp. 1016a]
THIS CAUSE having come before the appellate Court on Petitioner’s Motion to Recall Mandate, to Vacate Order Denying Petition and to Republish Order dated June 23, 2009, and/or Motion for Rehearing and/or Clarification and this Court having reviewed the memoranda of law, and being otherwise advised in the premises, grants in part and denies in part said motion and finds as follows:
1) On March 16, 2009, a Petition for Writ of Certiorari [Petition] of a 2009 discovery order was filed.1 An appellate mandate was issued by the circuit court on September 3, 2009, attached to which was an “Order dated June 23, 2009” (“Order”)2 denying the Petition. On June 16, 2009, the Appellate Division of the Clerks’ Office had issued a notice that no judicial appellate orders or opinions would be forwarded without a receipt of a fee for a copy. A subsequent notice indicated that a grace period existed through July 27, 2009.
2) Petitioner seeks to recall and vacate the September 8, 2009, Mandate and thereafter republish the June 23, 2009, Order attached thereto. As grounds, Petitioner contends it neither received nor had knowledge of the June 23, 2009, Order until its attachment to the September 8, 2009, Mandate, and that such delay constituted a denial of due process.
3) It is well established that an appellate court has the power to recall its mandate so long as the recall is within the term during which the opinion was issued. Owens v. State, 444So. 2d 951, 952 (Fla. 2d DCA 1984).
4) The instant mandate issued in the Spring term. Petitioner acknowledged that it received the mandate in the Spring term along with a copy of the “Order.” But, it notes that it failed to receive the same in time to file any motion for rehearing. Petitioner’s motion to recall the mandate was timely filed. A recall of the instant mandate is possible as the Fall term does not commence until the second Tuesday in November.
5) Petitioner also moves for a rehearing of the “Order” arguing that it is in polar opposition with a subsequent opinion of the same appellate panel with the same facts and law.
6) With regards to the instant Order, the majority denied the petition without written explanation. The dissent indicated that the majority opinion denied the Petition without requiring the Respondent to file a response to the Petition. The dissenting opinion indicates that the facts and law involved a motion to dismiss filed prior to any issuance of an order to show cause to file a response to the petition.3
7) The subsequent opinion referenced by Petitioner was rendered July 22, 2009, by the same appellate panel in United Auto. Ins. Co. v. Advance Health Services, III, Inc. a/a/o Angela Chavez, 16 Fla. L. Weekly Supp. 814a (Fla. 11th Cir. Ct.July 22, 2009). Contrary to Petitioner’s assertion that the subsequent per curiam opinion is similar to the instant Order, it appears to be distinguishable. The majority opinion in Advance Health resolved a motion to dismiss a petition for writ of certiorari prior to any response to a show cause order without mentioning Florida Rule of Appellate Procedure 9.300.4 There, the majority opinion resolved a motion to strike the reply to the response to the motion to dismiss in regards to Rule 9.300. As in the instant dissenting opinion, the special concurring opinion mentions Rule 9.300. That opinion determined that in addition to prohibiting any reply, the motion to dismiss should be denied as being unauthorized in view of the Rule. But, nowhere in the majority or special concurring opinion of Advance Health does it adopt or mention the instant dissenting opinion as Petetitioner avers.
8) Further, the instant prior dissenting opinion is not considered precedent Jenkins v. State, 385 So. 2d 1356, 1358 (Fla. 1980).5 Petitioner acknowledges that circuit court appellate panels do not employ an en banc procedure and are free to render differing opinions.
Wherefore, this Court finds that Petitioner’s Motion is granted as to a recall of the mandate and to vacate and republish the “Order” due to the failure of Petitioner to timely receive the “Order” but Petitioner’s Motion is denied as to any rehearing or clarification.
It is thereupon, ORDERED AND ADJUDGED:
PETITIONER’S MOTION IS GRANTED IN PART AND DENIED IN PART. (FRIEDMAN, MUIR, BAILEY, JJ.)
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1The discovery order had overruled objections to discovery from an 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.
2The Order is really an appellate opinion but Petitioner refers to it as an order.
3The dissenting opinion disagreed with the majority opinion by determining that the Respondent’s motion to dismiss should be stricken as premature and unnecessary as no specific authority exists for such a motion in certiorari proceedings absent exceptional circumstances not present here. A motion to dismiss a petition for writ of certiorari invites an extra response under Florida Rule of Appellate Procedure 9.300 generating unnecessary attorney’s fees. The dissenting opinion further disagreed on the merits by finding that jurisdiction existed to entertain the Petition and that a response should be filed to the Petition.
4The majority opinion rejected a motion to dismiss which involved entitlement to appellate attorney’s fees and standing. It further explained why jurisdiction existed to entertain the petition for writ of certiorari in finding that irreparable harm existed that could not be corrected on appeal.
5By definition, a dissenting opinion contains information, interpretation or legal analysis which has been rejected in whole or in part by the majority opinion. Jenkins v. State, 385 So. 2d 1356, 1358 (Fla. 1980).
