19 Fla. L. Weekly Supp. 308a
Online Reference: FLWSUPP 1905FRANInsurance — Personal injury protection — Jurisdiction — Medical provider’s filing of appeal of final judgment constituted abandonment of provider’s post-trial motion for new trial and divested trial court of jurisdiction to consider motion
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. ALL CARE HEALTH AND WELLNESS CENTER, a/a/o JEAN ROBERT FRANCOIS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-485 AP. L.C. Case No. 02-3592 SP 26. January 23, 2012. Counsel: Thomas L. Hunker, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Appellee.
(Before MUIR, DRESNICK, and BERNSTEIN, JJ.)
(Per Curiam.) Before this court is an appeal of the County Court’s decision which granted a new trial to the Appellee, All Care Health and Wellness Center (All Care), and denied the Appellant’s, United Automobile Insurance Company (United Auto), motion for summary judgment. The Appellant is requesting this court to reverse the trial court’s orders. For the reasons set forth below, we are reversing the County Court’s order which granted a new trial. However, we are refraining from ruling on the denial of the summary judgment since our decision to reverse the new trial order, in effect, reinstates the verdict in favor of United Auto, and renders moot the summary judgment decision.
Facts
This appeal is an appeal of a post-judgment proceeding which stemmed from a lawsuit originally brought by All Care against United Auto. All Care filed suit against United Auto for failing to pay for medical services provided to an injured passenger in a vehicle owned by United Auto’s insured. On July 21, 2005, the County Court of this circuit entered a final judgment finalizing a jury verdict finding in favor of United Auto. Within 10 days of the final judgment, on July 29, 2005, All Care timely served and filed a post-trial motion, pursuant to Fla. R. Civ. P. 1.530, requesting the County Court to issue a directed verdict in favor of All Care, or in the alternative, to grant a new trial. The post-trial motion challenged the weight of the evidence as to the treatment provided and charges accrued by All Care, and challenged the jury’s finding on the operability of a car owned by the injured passenger, which (if upheld) shifted primary responsibility for PIP insurance from United Auto to the injured passenger’s insurer. On September 26, 2006, the County Court granted a directed verdict on the medical expenses claim, and ordered a new trial on the operability of the car. Pertinent to the post-judgment proceedings and to this appeal is a Notice of Appeal filed by All Care prior to the trial court’s ruling granting a new trial. All Care’s notice of appeal was filed on December 7, 2005, several months before a new trial was granted by the County Court. Thus, All Care perfected its appeal prior to the final judgment on the second trial. On November 15, 2006, this Court, in its appellate capacity, summarily denied All Care’s appeal on procedural grounds. (Case No. 05-451 AP). Believing this appellate decision restored post judgment jurisdiction to the County Court, the parties proceeded to convene the new trial. Thereafter, a final judgment was entered in favor of All Care. United Auto filed this appeal.
The Appeal
In its appeal, United Auto is requesting this court to (1) reverse the trial court’s decision which allowed a new trial to proceed after the Notice of Appeal was filed, and (2) to reverse the trial court’s decision which rejected United Auto’s proffered, summary judgment evidence pertaining to the operability of the car. United Auto contends the filing of a notice of appeal divested the trial court of its authority to rule on the post judgment motion for a new trial. United Auto also contends that the trial court erred in ruling that the sworn statement submitted by United Auto did not comply with the rules of civil procedure governing summary judgment evidence.
Because we agree with United Auto’s initial contention regarding the trial court’s authority to grant a new trial, a determination of whether a sworn statement was compliant with the rules of procedure is not essential for a resolution of this appeal. Accordingly, we have limited our scope of review to the post-judgment motion for a new trial. Therefore, the sole issue this court will address is whether the trial court erred in allowing a new trial during the pendency of the appeal of the final judgment. This court finds that the trial court did err, and its decision, granting a new trial, should be reversed.
Standard of Review
Generally, appellate courts reviewing lower court decisions granting new trials defer to the trial courts’ discretion since such decisions usually involve a discretionary determination of whether the jury verdict is against the manifest weight of the evidence. Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla. 1998) [23 Fla. L. Weekly S30a]. However, when the trial court’s decision to grant a new trial entails an issue of law, the appellate courts are not required to defer to the trial court’s discretion. A reviewing court is free to make an independent, de novo determination as to whether granting a new trial was a correct legal conclusion based on the facts of the case. General Contractors of America, Inc. v. Stinson, 524 So. 2d 1148 (Fla. 3d DCA 1988); Philip Padovano, Florida Appellate Practice, § 19:5 Nature of the Adjudication — Discretionary Decisions; and §1:6 Jurisdiction Pending Review (2011-2012 ed.).
Based on a de novo review of the record and governing law, we find that All Care’s notice of appeal, filed during the pendency of its motion for a new trial, constituted an abandonment of the motion and divested the trial court of jurisdiction to grant a new trial.
Governing Law
Under Fla. R. App. P. 9.020(h)(3), the trial court loses jurisdiction to consider and rule on a post-judgment motion for a new trial upon the filing of a notice of appeal by the party which requested the new trial.
Appellate rule 9.020(h), which governs final judgments, addresses the types of motions which delay rendition of the final judgment, specifies when the trial court’s jurisdiction is reserved post-appeal, and delineates which post-judgment motions are subject to waiver or abandonment upon appeal. The rule reads, in pertinent part:
(h) Rendition (of an Order)
[I]f a final order has been entered and there has been filed in the lower tribunal an authorized and timely motion for a new trial, for rehearing, for certification, to alter or amend, for judgment in accordance with prior motion for directed verdict, for arrest of judgment, to challenge the verdict, to correct a sentence or order of probation, . . . to withdraw a plea after sentencing, . . . or to vacate an order based upon the recommendations of a hearing officer . . . . the following exceptions apply:
(3) If such a motion or motions have been filed and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal as to all claims between parties, who then have no such motions pending between them. (emphasis supplied)
Fla. R. App. P. 9.020(h)(3), (2011 rev. ed.).
Thus, in accordance with the express provisions of the rule, the filing of a notice of appeal operates as an abandonment of a post-trial motion for a new trial, if the notice of appeal is filed before the disposition of the motion.
In In re Forfeiture of $104,591 in U.S. Currency, 589 So. 2d 283, (Fla. 1991), the Florida Supreme Court addressed and dismissed instances when a notice of appeal will be treated as a premature appeal existing in limbo while a pending post judgment motion is considered, versus instances when a notice of appeal will effectively operate as a waiver or an abandonment of a pending post judgment motion.
In In Re Forfeiture $104,591 in US Currency, 589 So. 2d 283 (Fla. 1991), the Florida Supreme Court accepted jurisdiction to review an express and direct conflict between the Third District Court of Appeal’s decision in In Re Forfeiture $104,591 US Currency, 578 So. 2d 727 (Fla. 3d DCA 1991) versus the First District Court of Appeal’s decision in Leopard v. State, 489 So. 2d 859 (Fla. 1st DCA 1986) and the Fourth District Court of Appeal’s decision in Hathcock v. State, 492 So. 2d 756 (Fla. 4th DCA 1986). The Third District Court of Appeal’s case originally arose from a forfeiture suit filed by Metro-Dade Police Department against Ruben Gonzalez. The trial court entered a final judgment of forfeiture. Thereafter, Gonzalez timely filed a motion for rehearing. Prior to the hearing on or the disposition of the motion, Gonzalez filed a notice of appeal of the final judgment. While the appeal was before the Third District Court of Appeal, Gonzalez requested the court to relinquish jurisdiction to the circuit court for a determination of the rehearing motion. The Third District Court of Appeal denied the request, and ruled the filing of the notice of appeal divested the trial court’s jurisdiction, and constituted an abandonment of the then-pending post-judgment motion. 578 So. 2d at 727. However, the Third District Court of Appeal acknowledged that its decision was in direct conflict with “the minds of some,” i.e., the First and Fourth districts. Id., at 728. Those districts held that a notice of appeal, filed while post-trial motions are pending, will be treated as a prematurely filed appeal that shall exist in a state of limbo until the trial court rules on the motions.
The Supreme Court resolved the conflict by approving the principle set forth in the Third District Court of Appeal’s decision, and overruling those courts which have held in abeyance a notice of appeal until all post-judgment motions were resolved. The reason espoused for this holding is to avoid administrative confusion that could arise during the appellate process if the appealed decision is altered at the trial level. Id., at 285.
Essentially, the Florida Supreme Court views a notice of appeal as having the attributes of a final judgment, given its purpose is to alter the judgment appealed. Id., at 285. As such, the notice effects a court’s jurisdiction since the appealing party will be deemed to have abandoned certain matters reserved for future adjudication by the trial court.
Ruling
Thus, the waiver or abandonment rule set forth in 9.020(h), as confirmed by In Re Forfeiture $104,591 in US Currency, when applied to the pending case, effectively renders All Care’s motion for a new trial automatically waived once it pursued an appeal during the pendency of the motion, albeit inadvertently.
As gleaned from the record, the notice of appeal was filed nearly 5 months after All Care’s motion for a new trial, yet approximately 9 months before the trial court granted the motion for a new trial. Apparently neither the trial court nor the parties were aware that the appeal immediately conferred jurisdiction to the appellate court, thereby divesting the trial court of jurisdiction to consider the post-trial motion. Having lost jurisdiction, the trial court was precluded from convening a new trial. For this reason, this Court finds that the County Court’s decision to grant a new trial was erroneous. Accordingly, the County Court’s order granting a new trial is reversed.
Upon remand, we instruct the County Court to take measures consistent with this opinion which may include consideration of whether the verdict in favor of United Auto should be reinstated.
Appellate Attorney’s Fees
We also find United Auto is the prevailing party, and is hereby GRANTED attorney’s fees and costs incurred on appeal. The County Court shall determine the amount of a reasonable fee and taxable costs.
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