18 Fla. L. Weekly Supp. 501a

Online Reference: FLWSUPP 1806MONT

Insurance — Personal injury protection — Summary judgment — Opposing affidavit — No merit to claim that, if insurer’s affidavit offered in opposition to summary judgment is found to be insufficient by appellate court, insurer should be afforded opportunity to return to trial court to file amended affidavit where insurer did not seek leave to amend before trial court and argued in briefs that affidavit was more than sufficient — Appellate court reiterates prior opinion finding that, although trial court erred in refusing to consider peer review affidavit because it was not obtained prior to denial of medical bills, grant of summary judgment in favor of medical provider was proper under tipsy coachman doctrine because affidavit was conclusory, was based on unauthenticated and unattached documents, and conflicted with report of independent medical examination performed by same physician

UNITED AUTOMOBILE INSURANCE COMPANY, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o YANSI MONTESINO. Circuit Court, 11th Judicial Circuit, (Appellate) in and for Dade County. Case No. 08-296AP & 08-375 AP. L.T. Case No. 06-20039 CC 05. February 25, 2010. On Appellant’s Motion to Vacate Mandate and Issue a Revised Opinion on Appeal from a decision rendered by the Miami Dade County Court. Andrew S. Hague, Judge. Counsel: Thomas Hunker, Office of the General Counsel of United Automobile Insurance Company, for Appellant. Virginia Best, Lopez & Best, for Appellee.

(Before CABALLERO, COHEN, and GLAZER, JJ. Judge Glazer did not participate in oral argument.)[Original Opinion at 17 Fla. L. Weekly Supp. 520a]

(CABALLERO, Judge.) The Court grants United Automobile Insurance Company’s Motion for Rehearing to address the arguments raised therein. The Court has again reviewed the record before the trial court, the Initial Brief, the Answer Brief, the Reply Brief and the Appellant’s Motion for Rehearing and Appellant’s Motion to Vacate Mandate and Issue a Revised Opinion and finds as follows:

The Law On Motions for Rehearing

Motions for rehearing of appeal which basically reargue merits of case are inappropriate. Seslow v. Seslow, 625 So.2d 1248 (Fla. 1993). The privilege to seek a rehearing in an appellate court is not an open invitation for an unhappy litigant or attorney to reargue the same points previously presented, or to discuss the bottomless depth of the displeasure that one might feel toward the appellate court as a result of having unsuccessfully sought appellate relief. Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1230a] rehearing denied, review denied 17 So.3d 292. As noted in Lawyers Title Ins. Corp. v. Reitzes, 631 So.2d 1100 (Fla. 4th DCA 1993), the filing of Rule 9.330 motions should be done under very limited circumstances; it is the exception to the norm. Moreover, matters may not be raised for the first time on such a motion. See Polyglycoat Corp. v. Hirsch Distributors. Inc., 442 So.2d 958 (Fla. 4th DCA 1983), rev. dismissed, 451 So.2d 848 (Fla. 1984).

See also href=”http://www.floridalawweekly.com/newsystem/showfile.php?file=../files/issues/vol25/dca/2668b.htm”>Ayur v. Bush, 775 So.2d 368 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2668b] where the appellate court declined to consider additional authorities advanced by Appellee for first time in its petition for rehearing when they were not argued in Appellee’s brief and oral argument).

Analysis

Not only has Appellant inappropriately raised issues not framed in the Initial Brief or the Reply Brief, but Appellant re-argues issues that were addressed in the briefs and at oral argument, clearly in violation of the purpose and intent of a Motion for Rehearing. Appellant clearly disagrees with the Opinion that was carefully prepared after a complete review of the issues preserved for appeal. However, such disagreement does not form the basis for a Motion for Rehearing. Appellant has inappropriately engaged in new arguments raised for the first time tantamount to an apparent attempt at a second appeal.

Appellant also cites to numerous cases in its Motion for Rehearing on the same subjects raised in the briefs but are being cited for the first time although many of the cases pre-date the briefs and the oral argument. In citing to these new cases, Appellant attempts to use these new cases to have a second bite at the apple; Appellant reargues the points on appeal that this Court disagreed with and raises a new argument for the first time in its Motion for Rehearing concerning Appellant’s claim that it is entitled to another opportunity to correct the Affidavit it filed in opposition to the summary judgment motion.

Additionally, Appellant’s characterization that the Court’s Opinion “departs from the essential requirements of the law” is not supported by the record.¹ Contrary to the Appellant’s claim that the record does not support the Court’s Opinion regarding the lack of competency of the Goldberg Affidavit such that it did not comport with competent summary judgment evidence, the record is replete that the trial court was in fact advised of the lack of competency of the Goldberg Affidavit at the April 22, 2008 hearing before the trial court. No objection by Appellant’s counsel was made to the argument raised by Appellee’s counsel at the hearing, nor did Appellant’s counsel make any request of the trial court that he be permitted to revise the Affidavit to correct the obvious deficiencies of the Affidavit. No request was made of the trial court at either the March 30, 2007 hearing or the April 22, 2008 hearing, which together totaled 68 pages of argument before the trial court.

Instead, in the Reply Brief, for the first time, Appellant argues that the Affidavit was sufficient, but as a fall back position, claims that if it is not sufficient, then Appellant should have an opportunity to go back to the trial court, where it had ample opportunity to ask for relief in the first instance and was on notice to do so but chose not to request leave to amend the affidavit, apparently believing that the affidavit in question was more than sufficient notwithstanding the argument to the contrary by Appellee’s counsel to the trial court. The actions of Appellant in choosing not to seek leave to amend its Affidavit at the appropriate time before the trial court while Appellant clearly acknowledges in its Reply Brief it believes the Affidavit to have been more than sufficient acts as a waiver. It is axiomatic that an appellant does not get multiple bites at the appellate apple by deliberately choosing to decline to seek relief of which it is on notice but of which it chooses not to avail itself, but only seeks to avail itself of the relief it was eminently aware existed only when it has lost its case. As noted in Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2464a], “It is the function of the appellate court to review errors allegedly committed by the trial court, not to entertain for the first time on appeal issues which the complaining party could have and should have, but did not, present to the trial court.” This Court declines to find any trial court error on rehearing of an issue that was not preserved for appeal by Appellant and was not argued or addressed by Appellant’s trial counsel at two summary judgment hearings.

Appellant’s attempt to rely upon the recent case of United Automobile Ins. Co. v. Merkle, 32 So.3d 159 (Fla. 4th DCA 2010)² [35 Fla. L. Weekly D620a] is unavailing on the facts of this case. As addressed above, Appellant never sought leave to amend the affidavit clearly because it did not believe the affidavit was deficient. Unlike in Merkle, there was no Motion for Rehearing ever made and no argument to the trial court when Appellee’s counsel addressed the lack of competency of the Goldberg Affidavit at the second hearing on Plaintiff’s Motion for Summary Judgment. Moreover, a quick perusal of this Court’s Opinion will reveal that unlike Merkle, the issues regarding the Goldberg Affidavit are not merely technical. While there is a lack of authentication of records referred to by Dr. Goldberg, the more significant deficiencies addressed by this Court’s Opinion are substantive in nature. Among other things, Dr. Goldberg repeatedly concludes that medical treatments are not necessary or related because he has not been provided with any documentation. Such an opinion is not competent summary judgment evidence to create a factual dispute to overcome the prima facie case that Appellee made and that went unchallenged by Appellant. The entire basis of a peer review is a review of medical records. If a doctor is not provided with medical records, he cannot attest to RR&N. That is not technical in nature and does not trigger the underlying intent of Merkle. Nothing in the record suggests that Dr. Goldberg requested a copy of the documents he claims were not provided that led him to conclude that medical treatment was not RR&N. This Court does not believe that the requirements of Rule 1.510 F.R.C.P. have been abrogated by the Merkle Opinion nor has the Florida Supreme Court eliminated Rule 1.510 F.R.C.P. from the Rules of Civil Procedure.

As there is ample record evidence to sustain this Court’s Opinion that the Goldberg Affidavit does not constitute competent summary judgment evidence or is governed by the Merkle decision, which is factually distinguishable as discussed above, the law is clear, and certainly no departure from the essential requirements of the law, that a trial court will be affirmed if its ruling is supported by any ground in the record. The decision of a trial court has a presumption of correctness and the burden is on the appellant to demonstrate error. That tenet of the law comes directly from the Supreme Court of the State of Florida and is seminal law reflected in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) which holds that even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if evidence or an alternative theory supports it.

Appellee having met its prima facie burden that was not overcome by Appellant, coupled with the testimony of Appellant’s adjuster that supports the trial court’s ruling, the Tipsy Coachman doctrine applies. Moreover, contrary to Appellant’s representations in its Motion for Rehearing, the Tipsy Coachman in fact applies in summary judgment cases as reflected in the following cases, including Supreme Court cases, string-cited as follows: Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) [24 Fla. L. Weekly S216a]; Continental Casualty Co. v. Ryan Incorporated Eastern, 974 So.2d 368 (Fla. 2008) [33 Fla. L. Weekly S59a]; Carraway v. Armour and Co., 156 So.2d 494 (Fla. 1963); Horton Inc.-Jacksonville v. Peyton, 959 So.2d 390 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1496c]; Nationwide Mutual Fire Insurance Company v. Smith, 28 So.3d 943 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D419a]; Henderson v. Crosby, 883 So.2d 847 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1937b]; E.G. Green v. First American Bank and Trust, 511 So.2d 569 (Fla. 4th DCA 1987); McPhee v. Dade County, 362 So.2d 74 (Fla. 3d DCA 1978); Jupiter Ocean and Racquet Club Condominium Ass’n, Inc. v. Courtside, 17 So.3d 854 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1801a] and Brookridge Community Property Owners, Inc. v. Brookridge, Inc., 573 So.2d 972, (Fla. 5th DCA 1991). As there are cases from the Supreme Court dealing with the tipsy coachman rule in summary judgment cases, a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court and any departure from prior decision of that Court should be at the hands of the Supreme Court alone. See Reaves v. Rozzo, Inc., 286 So.2d 221 (Fla. 4th DCA 1973).

Finally, notwithstanding the foregoing that alone sustains the trial court’s judgment, Appellant’s “credible evidence” argument fails in light of Dr. Goldberg’s findings that medical treatment was not RR&N because he did not have the documentation or records in his possession. The trial court clearly referenced the conflicting testimony by Dr. Goldberg that supported the trial court’s determination that the Ellison rule applied.³ Accordingly, this Court vacates its mandate and hereby reaffirms its findings as rendered in its original Opinion and issues this revised opinion pursuant to its order granting the Appellant’s Motion for Rehearing. (GLAZER, J. concurs. COHEN, J. dissents.

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¹This appeal is a plenary appeal and not a petition for writ of certiorari.

²It is noteworthy that Appellant in its Reply Brief relied upon the case of Stephens v. Dich, 216 So.2d 448 (Fla. 1968), the same case relied upon by the Merkle Court. Appellant therefore knew of the argument it could have made to the trial court, but which clearly it chose not to do.

³Ellison v. Anderson, 74 So.2d 680 (Fla. 1954).