18 Fla. L. Weekly Supp. 154a
Online Reference: FLWSUPP 1802DORA
Insurance — Venue — Appeals — Appellate court may and must address issue of its jurisdiction at any time — Non-final county court order concerning venue, without entry of final order ending county court’s judicial labors in case, is not appealable final order — Insurer may amend brief by filing supplemental pleading, which will be considered petition for writ of certiorari
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. PETER J. DORAN, D.C., P.A., (a/a/o JACOB LAUDERBAUGH, ALEXIA BOYINGTON), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-326 AP, 10-327 AP (Consolidated). L.C. Case Nos. 09-7072-SP-26, 09-7074 SP-26. November 30, 2010. On appeal from non-final order entered by the Miami-Dade County Court, Gloria Gonzalez-Meyer, Judge. Counsel: Jose Pagan, and Neil V. Singh, for Appellant. Juan C. Montes, for Appellee.
(Before LEBAN, EMAS, BLAKE, J.J.)
ORDER DISMISSING APPEAL, PERMITTING AMENDMENT OF APPEAL AS PETITION FOR WRIT OF COMMON LAW CERTIORARI, AND GRANTING EXTENSIONOF TIME WITHIN WHICH TO SERVE AMENDMENT
(LEBAN, Judge.) The Court, having issued its order of October 20, 2010, DEFERRING RULING ON MOTION FOR EXTENSION OF TIME TO FILE ANSWER BRIEF AND DIRECTING PARTIES TO ADDRESS JURISDICTION OF THIS COURT, and the Appellant having duly filed its RESPONSE to the Court’s ORDER on or about October 28, 2010,1 and the Court being fully advised in the premises, hereby finds and orders as follows:
This appeal arises from a non-final order of the County Court which denies a motion to transfer venue. The appeal purports to be filed pursuant to Rule 9.130(a)(3)(A), Fla.R.App.P.,2 cited in the Appellant’s Notice of Appeal. In due course, Appellant filed its Initial Brief and, thereafter, upon Appellee’s motion for extension of time within which to serve its Answer Brief, this Court sua sponte issued the aforesaid ORDER DIRECTING THE PARTIES TO ADDRESS THE COURT’S JURISDICTION, on October 20, 2010.
The parties in their response (and concurrence without written response) take the position that the Circuit Court Appellate Division has jurisdiction over this appeal pursuant to the Florida Rules of Appellate Procedure, Rules 9.130(a)(1), 9.030(c)(1)(B), section 5(b), Article V, Florida Constitution, and section 26.012, Florida Statutes. The latter source of purported jurisdiction of this Court provides that “Circuit courts shall have jurisdiction of appeals from county courts. . .”. §26.012(1), Fla.Stat. The Rule of Appellate Procedure cited in Appellant’s Notice of Appeal, see note 2, supra, by its very terms, applies to appeals “to the district courts of appeal of non-final orders,” and not appeals to the circuit court acting in its appellate capacity, and for that reason, inter alia, this Court rejects its applicability in the case at bar as a jurisdictional basis for this appeal of a non-final order concerning venue.
Perhaps unknown to the parties to this appeal, this Court by opinion issued October 14, 2010, extensively addressed a similar jurisdictional issue which the Court, sua sponte, raises in the case at bar. See Geico Indemnity Company v. Health USA Corp., a/a/o Nataly Blanco & Sergio Gil, Case Nos. 10-125 AP, 10-126 AP, (consolidated), rehearing denied November 29 , 2010. While Geico arises from an attempted appeal from a non-final and nonappealable summary judgment order (as opposed to a fully appealable final summary judgment order), the identical principles of law set forth in this Court’s Geico opinion apply to the case at bar and will not be resurrected in this order, apart from the following.
First, of course, an appellate court may, indeed, must, question its own jurisdiction at any time despite the failure of the parties to do so. See, 3 Fla.Jur2d Appellate Review, §30. And see, Crapp v. Criminal Justice Standards and Training Com’n, 753 So.2d 787, 787 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D822f]; Bramblett v. State, 15 So.3d 839, 840 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1505a].
Second, again adverting to hornbook appellate law, non-final orders, such as the venue order sought to be appealed herein, are not governed by the Florida Rules of Appellate Procedure, but by “general law.” See 2 Fla.Prac., Appellate Practice §5:3 (2010 ed.), “Non-Final Orders of Lower Tribunals” (Philip J. Padovano). Appellant, in the case at bar, appears to recognize this principle, but nevertheless argues that section 26.012, Florida Statutes, constitutes just such “general law” and that, accordingly, Appellant believes that appeals of county court venue orders are properly taken to the circuit courts. See RESPONSE, ¶ 2. For reasons more comprehensively set forth in the Court’s Geico opinion, the Court must disagree. Appellant, in the same paragraph of its RESPONSE, argues that “the legislature has dictated the Court’s jurisdiction and the supreme court has affirmed it.” Presumably, Appellant is referring to the Supreme Court’s Rules of Appellate Procedure, above. However, Appellant overlooks the Supreme Court’s decision in Blore v. Fierro, 636 So.2d 1329 (Fla. 1994), in which the Court held:
[W]hile this Court is given exclusive rulemaking authority over interlocutory appeals to the district courts of appeal, the Constitution does not provide this Court with such authority for appeals from the county court to the circuit court. The authority for appeals to the circuit court is established solely by general law as enacted by the legislature.*** [A]rticle V, section 5, of the Florida Constitution gives the legislature the exclusive authority to provide for the manner of appeals from the county court to the circuit court. Id. at 1332. [Emphasis added].
The Blore Court, thus, rejected the very proposition advanced by Appellant herein, that Rule 9.130 can authorize a civil appeal from a non-final order such as that entered in the case at bar to the circuit court acting in its appellate capacity.
Yet, Appellant persists in its argument that the “general law” embodied in section 26.012, Florida Statutes, confers just such jurisdictional authority upon the circuit courts. Appellant, however, ignores the binding precedent of Shell v. Foulkes, 19 So.3d 438, 440 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2039a], wherein the Fourth District expressly rejected the identical argument about the cited statute:
The Circuit Courts do not have any general jurisdiction under the appellate rules to review non-final orders. . . without a final judgment. As for general law, nothing in Chapter [ ] 26[.012], Florida Statutes, purports to give Circuit Courts appellate jurisdiction to review non-final orders. [Emphasis added].
Thus, this Court concludes that the non-final order concerning venue entered by the County Court below, without entry of a final order ending that Court’s judicial labors, is simply not appealable to this Circuit Court acting in its appellate capacity. Appellant’s broad assertion that section 26.012, Florida Statutes, may be read to confer jurisdiction over the venue order in the case at bar must be rejected.
As for Appellant’s reliance upon section 5(b), Article V, Florida Constitution, as noted in Blore, that constitutional provision merely “gives the legislature the exclusive authority to provide for the manner of appeals from the county court to the circuit court.” Blore, supra at 1332. And, as Shell demonstrates, the legislature has failed to do so by its enactment of section 26.012, Florida Statutes.
Appellant next argues that Tannenbaum Chiropractic Institute, Inc., d/b/a Cities Orthopaedic Group v. State Farm Mutual Automobile Insurance Company, 10 Fla. L. Weekly Supp. 478(b) (Fla. 13th Cir.Ct. App., May 19, 2003), which this Court expressly cited in its October 20, 2010, ORDER, and which held that the Circuit Court, acting in its appellate capacity, lacked jurisdiction over venue orders entered by the county courts, is not persuasive since “[i]t may be that section 26.012 was not called to the Tannenbaum court’s attention.” RESPONSE at ¶ 4. Appellant apparently overlooks the fact that Tannenbaum expressly cites Blore v. Fierro, supra, which, indeed, cited and discussed section 26.012, Florida Statutes. This Court thus rejects Appellant’s efforts to avoid the persuasive precedent of Tannenbaum.
Appellant, however, relies upon MTM Diagnostic, Inc., v. Geico General Insurance Company, 7 Fla. L. Weekly Supp. 578b (Fla. 9th Cir.Ct. App.), also cited by this Court in its October 20, 2010, ORDER, as “consistent with State Farm’s position in that it recognizes that rule 9.030(c)(1) gives a circuit court jurisdiction over appeals of non-final orders.” See RESPONSE at ¶4. MTM Diagnostic found that the circuit court, acting in its appellate capacity had jurisdiction over venue appeals.3 Inasmuch as MTM Diagnostic contains no analysis whatsoever and, fails to cite either Blore v. Fierro, supra, or Shell v. Foulkes, supra, this Court rejects its application here.
Finally, Appellant relies upon American Federated Title Corp., as Trustee Under Land Trust #61530 v. A&M Florida Properties, LLC, 17 Fla. L. Weekly Supp. 84b (Fla. 11th Cir.Ct. 2009), which found the Circuit Court had appellate jurisdiction over a non-final appeal which it treated as a stay order “like temporary injunctions, reviewable by interlocutory appeal.” Of course, the appeal in the instant case involves a denial of a transfer of venue, not a denial of a stay or a temporary injunction. Moreover, the American Federated court ignores Shell v. Foulkes, supra and, for these reasons, this Court respectfully declines to afford it persuasive weight on the jurisdictional issue.4
Thus, the Court must conclude that it has no appellate jurisdiction over the lower court’s order denying a transfer of venue and, the appeal therefrom must be and is hereby DISMISSED. However, the Court agrees with Appellant’s alternative assertion that, pursuant to Rule 9.040(d), Fla.R.App.P., it “may permit any part of the proceeding to be amended so that it may be disposed of on the merits.” Accordingly, the Court will afford Appellant an opportunity to amend its Initial Brief by filing a supplemental pleading which will be considered a Petition for Writ of Common Law Certiorari, as if properly filed pursuant to Rule 9.100, Fla.R.App.P., and will afford Appellant an extension of time of 30 days within which to do so. Of course, the standard of review for a certiorari petition differs greatly from the standard involved in a direct appeal, and, Appellant, now-Petitioner, is directed to address whether it meets that more exacting standard. In that regard, the Court, without addressing the merits of any such petition (which will be assigned to a certiorari panel), directs the Appellant’s attention to Tucker v. Fianson, 484 So.2d 1370, 1372 n.4 (Fla. 3d DCA 1986), where it was claimed that a pretrial denial of a transfer or change of venue would, among other results, force the Appellant to incur great expense; the Third District, however, stated that it was “unimpressed with the parade of horribles invoked by the Appellant as to the consequences of a rule under which a tortfeasor may be required to defend an action for consequences its conduct has caused in an unanticipated area far from his home.”
Finally, counsel for Appellant has correctly indicated that there are other unrelated cases pending in this Court involving “appeals” from non-final venue orders, and that the effect of today’s order will have an impact on the jurisdiction of the Court in those appeals. The Court appreciates the parties’ candor in already providing it with a listing of several such “venue appeals,” and requests that insofar as counsel for either party in this appeal, or other appellate counsel who may become aware of this order, can do so, counsel provide the Court with a list of any such additional “venueappeals” so that the Court may take appropriate action in those cases consistent with this order.
Accordingly, the appeal from the County Court’s venue order is DISMISSED, and Appellant shall be afforded 30 days from the date of this order within which to file an amended pleading which shall be considered as a Petition for Writ of Certiorari and which shall address the standard for review for the issuance of said Writ. (EMAS, BLAKE, JJ., Concur.)
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1This Court’s October 20, 2010, ORDER directed counsel for both parties to file a response on the jurisdictional issue; upon inquiry to counsel for Appellee, the Court has learned that Appellee will not be filing a response, instead advising that counsel concurs with the position set forth in Appellant’s response. This is acceptable to this Court and the ORDER set forth above is premised upon the combined and agreed positions of the parties.
2This rule, by its express terms, applies to “[a]ppeals to the district courts of appeal of non-final orders. . . that. . . concern venue. . .”. [Emphasis added].
3In the same paragraph, State Farm asserts that it “finds no reference to rule 9.130(c)(1) in the [MTM Diagnostic] opinion.”While that observation is true, MTM does reference rule 9.030 (c)(1), despite Blore’s admonition that the Supreme Court’s rules cannot confer appellate jurisdiction on the circuit courts.
4The Court also rejects Appellant’s analysis of American Federated as “specifically not[ing] that Tannenbaum did not mention [section 26.012].” See RESPONSE at ¶5. To the contrary, the American Federated court simply disagreed with Tannenbaum which, as we have already noted, expressly cited Blore which, in turn, cited section 26.012.
