19 Fla. L. Weekly Supp. 617a
Online Reference: FLWSUPP 1908VALEInsurance — Personal injury protection — Affirmative defenses — Amendment — New trial is required following district court of appeal ruling that appellate division of circuit court properly found that it was within trial court’s discretion to strike insurer’s defense of fraud on morning of trial, but that circuit court’s affirmance was based on incorrect factual assumption — On remand trial court should resolve any issue involving amended pleadings though application of small claim rules or any rules of civil procedure invoked — Where final judgment is vacated, insurer’s request for offer of judgment appellate fees and medical provider’s request for prevailing party appellate fees are denied
STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. BEST THERAPY CENTER, a/a/o DAVID VALERA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-508 AP. L.C. Case No. 05-2586 SP 25. April 20, 2012. On remand from the Third District Court of Appeal and on appeal from a final judgment rendered by the Miami-Dade County Court. Honorable Don S. Cohn, Judge. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans & Able, P.A., for Appellant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A. and Maria E. Corredor, Maria E. Corredor, P.A., for Appellee.[Original Opinion at 17 Fla. L. Weekly Supp. 1172a;quashed at 36 Fla. L. Weekly D2072a]
(Before MUIR, SHAPIRO, and COHEN LANDO, JJ.)
(MUIR, Judge.) On second-tier certiorari review, the Third District Court of Appeal quashed our opinion1 and remanded for further consideration by the appellate division of the circuit court of one issue, whether leave to amend the defendant’s answer should be granted. State Farm Fire & Cas. Co. v. Best Therapy Center, 69 So. 3d 1059 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2072a].
On the day of trial, the trial judge allowed an amendment to the complaint of the plaintiff medical provider that sought $2,500, to include damages of $5,000, indicating that the plaintiff’s case was governed by the Florida Small Claims Rules. Along the three-year journey to trial, the plaintiff medical provider submitted medical bills in discovery exceeding $11,000 claiming insurance benefits on behalf of a patient, David Valera. Following a directed verdict for the plaintiff, the trial judge indicated that the case is still governed by the Florida Small Claims Rules by limiting the final judgment to $5,000, plus interest. That judgment has been reversed and this case has been remanded for a new trial.
This case began with a complaint filed February 15, 2005 that sought $2,500 (Vol. 1, pages 7-12, docketed as a “statement of claim” according to the “INDEX RECORD ON APPEAL” filed on January 13, 2009 in appellate case 08-508.) After the pretrial in March, 2005, the case was set for jury trial. Consistent with both the Florida Small Claims Rules and the Florida Rules of Civil Procedure, the trial judge granted (in part) on the day of trial, a motion to amend the complaint of the medical provider to conform to the evidence of damages in excess of the $2,500 sought in the complaint.
Florida Small Claims Rule 7.020 entitled, “Applicability of Rules of Civil Procedure” adopts some rules, but does not adopt the civil procedure rule on amended and supplemental pleadings, except for subsection (e) of Florida Rule of Civil Procedure 1.190.
Subsection (e) provides that the court may “at any time, in the furtherance of justice, upon such terms as may be just. . . permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.” We agree with the Third District Court of Appeal that reconsideration of the court’s denial of leave to file an amended answer is appropriate but the procedural rules appear to give the trial courts broad discretion as to amendments to pleadings, particularly for the county courts that handle small claims.
In our initial opinion, we noted that the motion for leave to invoke the Florida Rules of Civil Procedure by the defendant (State Farm) was denied (in part) as the only rule adopted in the order involves offers of judgment. Initially, the trial judge entered an order on the defendant’s Motion to Invoke Florida Rules of Civil Procedure dated June 2, 2005, that indicated “granted as to F.R.C.P. 1.442.” Unfortunately, the “INDEX RECORD ON APPEAL” does not include a subsequent inconsistent order dated June 14, 2005 by the same county court judge (now retired.) Any omission in the record should be addressed by the county court judge, not only as provided by Florida Rule of Civil Procedure 1.190(e) but also because the order(s) involving which rules of procedure apply are interlocutory and can be reconsidered at the discretion of a successor judge.
The Florida Rule of Civil Procedure for amended pleadings that applies in both Florida Small Claims cases and those governed by the Florida Rules of Civil Procedure allows amendments to the pleadings. The first priority in the trial court is to determine whether the trial judge should proceed according to the rules of pleadings in the Florida Rules of Civil Procedure and require amended pleadings.
The trial court according to Small Claims Rule 7.020 (c) “may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure . . .on the court’s own motion.”
In the opinion of the Third District Court of Appeal, the “circuit court [appellate division] upheld the trial court’s striking of State Farm’s fraud defense and prohibiting the jury from hearing that Valera had not received medical treatment from Best Therapy for the Miami Beach accident. The circuit court reasoned that State Farm had waived its fraud defense, and that the trial court properly used its discretion in denying State Farm leave to amend right before trial as Best Therapy would have been prejudiced.” Best Therapy Center, supra, 69 So.3d at 1061.
Because Best Therapy’s appellee’s brief was late and stricken by another panel of the court, our appellate review of the final judgment following a directed verdict by the trial judge did not involve Best Therapy’s claims of prejudice, as we could not rely on a stricken brief and Best Therapy was denied oral argument. We relied instead on routine prejudice caused when a long awaited jury trial date in a small claims case is continued at the last minute to allow reopening of the pleadings.
As the reviewing court, we understood that we must consider the facts and testimony in the light most favorable to the party opposing the motion for directed verdict (State Farm.) We then needed to determine if there was any conflicting evidence or inferences from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered. Wald v. Graniger, 64 So. 3d 1201, 1205 (Fla. 2011.) [36 Fla. L. Weekly S211b] We considered the entire record presented on appeal from the final judgment, and the proceedings taken September 23 and 24, 2008 (Volumes IV and V of the voluminous Record on Appeal.)
In our affirmance of the trial court’s striking the defense of fraud in this case and denying leave to file an amended answer on the first day of trial, we determined that the Florida Small Claims Rules do not even require an answer, although State Farm had filed an answer, which was optional. See Fla.Sm.C1. R. 7.090 (c). State Farm also obtained an order dated April 24, 2007, allowing “affirmative defenses.”
In our affirmance of the final judgment, we considered another rule in the Florida Rules of Civil Procedure that covers requirements for fraud averments in “Pleading Special Matters” but that rule likewise need not be adopted by the trial court as it is not incorporated in the Florida Small Claims Rules. See Fla. R. Civ. P. R. 1.120(b); Fla. Sm.Cl. R. 7.020.
If the evidence presented at trial showed fraud, then an amendment to conform to the evidence would logically have followed in accordance with the liberal rules of amendments to conform to the evidence allowed by Florida Small Claims Rules. It is the view of this appellate panel that the trial judge should resolve any issue involving amended pleadings through application of the Florida Small Claims Rules and any other Florida Rule of Civil Procedure that is invoked.
The trial judge is free to require amended pleadings on remand, to recognize the trial judge’s earlier order permitting the plaintiffs amendment to the complaint. If the trial judge adopts the Florida Small Claims Rules, a pretrial conference is the time at which “written pretrial motions and defensive pleadings” shall be served “at or prior to the pretrial conference.”
We leave the decision to the trial judge whether the parties should avail themselves of the small claims procedures and return this seven year old case to the fast track contemplated by the Florida Small Claims Rules.
As required by the law of the case doctrine, issues decided by the appellate court govern on remand to the circuit appellate division. State v. Budina, 879 So. 2d 16, 19 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1062b]; Miami Dade County v. Bloom, 18 Fla. L. Weekly Supp. 935a (Fla. 11th Cir. Ct. Aug. 3, 2011). Therefore, we may not contravene legal questions decided by the district court. Budina, 879 So. 2d at 19. But we view the decision of the Third District Court of Appeal on second tier certiorari as not binding as to whether the new trial granted will be a “Small Claims” (SP) case with different procedural rules, where a “defensive pleading” is not necessary, unless the Florida Rule of Civil Procedure 1.120(b) requiring that fraud be alleged with “particularity”, will be deemed applicable by order of the county court.
The Third District Court of Appeal has reversed, except as to our affirmance of the trial court’s denial of leave to amend the defendant’s answer, and accordingly, we remand to the trial court to vacate the final judgment consistent with the opinion of the Third District Court of Appeal, and to consider the procedural rules (Small Claims or Civil) which should apply, consistent with Florida Small Claims Rule 7.020 (c).
We acknowledge that “[o]rdinarily, an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556, 61 S. C. 719, 721, 85 L.Ed. 1037 (1941.)
During the circuit appellate proceedings, State Farm asserted that the trial judge erred by striking the fraud affirmative defense without granting leave to amend the affirmative defense on the first day of trial. Originally, we found no error in striking the fraud affirmative defense. Best Therapy, 17 Fla. L. Weekly Supp. 1172a. The Third District Court of Appeal agreed that we applied the correct law. Best Therapy, 69 So. 3d at 1062. On remand, the trial judge will be governed either by Florida Small Claims Rule 7.020(a) which adopts Florida Rule of Civil Procedure 1.190(e) governing amended pleadings, or other Florida Rules of Civil Procedure if invoked or adopted by the trial court judge.
The Third District Court of Appeal quashed our conclusion regarding counsel for State Farm reading Mr. Valera’s deposition to the jury. Best Therapy, 69 So. 3d at 1062.
The Third District Court of Appeal concluded that we incorrectly applied the law when awarding appellate attorney’s fees to the provider. Best Therapy, 69 So. 3d at 1062. When a district court quashes a circuit appellate opinion, the controversy returns to the circuit appellate court as if the circuit court issued no appellate opinion. City of St. Petersburg v. Meaton, 987 So. 2d 755, 758 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D1712b]. Therefore, State Farm and the medical provider’s motions for attorney’s fees remain pending.
State Farm moved for appellate attorney’s fees pursuant to section 768.79, Florida Statutes2. This statute applies when the trial court’s judgment does not apply liability to the defendant-insurer, or the plaintiff-medical provider obtains a judgment twenty-five percent (25%) less than the insurer’s offer of judgment. § 768.79(1), Fla. Stat. (2011). Here, we vacate the final judgment. By vacating the final judgment, no determination regarding the State Farm’s liability governs this litigation; also, the medical provider does not obtain a judgment 25% less than the offer of judgment. Therefore, the State Farm’s motion does not currently satisfy section 768.79(1).3 We deny the State Farm’s request for offer of judgment appellate attorney’s fees.
We deny the medical provider’s request for section 627.428 appellate attorney’s fees since the medical provider does not obtain an appellate judgment in its favor as statutorily required.
REMANDED for NEW TRIAL. (SHAPIRO, J., concurs.)
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1State Farm Fire & Cas. Co. v. Best Therapy Center, a/a/o David Valera, 17 Fla. L. Weekly Supp. 1172a (Fla. 11th Cir. Ct. Aug. 13, 2010).
2Offer of judgment and demand for judgment.
3See Mesa v. Ocean Enterprises, Inc., 803 So. 2d 908, 909-910 (Fla. 4th DCA 2002) [26 Fla. L. Weekly D2805b]; State Farm Fire & Cas. Co. v. Suncare Physical Therapy, Inc., 18 Fla. L. Weekly Supp. 776a (Fla. 11th Cir. Ct. July 13, 2011), pet. dismissed, 3D11-2147 (Fla. 3d DCA 2011).
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