26 Fla. L. Weekly Supp. 703a
Online Reference: FLWSUPP 2609VEGAInsurance — Appraisal — Appeals — Jurisdiction — Non-final order compelling appraisal is not appealable or reviewable by certiorari
RECOVERY 911 RESTORATION, INC., a/a/o Javier & Jackeline Vega, Appellant-Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee-Defendant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 17-93 AP. L.T. Case No. 14-3776 CC 05. November 5, 2018. On appeal from a non-final order rendered by the Miami-Dade County Court. Honorable Wendell M. Graham, Judge. Counsel: Lazaro Vazquez, Law Office of Lazaro Vazquez, P.A., and Virginia Best, Lopez & Best, for Appellant-Plaintiff. Scot E. Samis from Traub Lieberman Straus & Shrewsberry LLP, for Appellee-Defendant.
(Before ECHARTE, RUIZ, & CUESTA, JJ.)
(Per Curiam.) The county court entered a non-final order granting State Farm Florida Insurance Company’s (“Insurer”) request to compel appraisal. In this proceeding, Recovery 911 Restoration, Inc., a/a/o Javier & Jackeline Vega (“Restoration-Company”) challenges the non-final order compelling appraisal. We agree with the Insurer’s assertion that we must consider whether we should dismiss this interlocutory appeal due to deficient jurisdiction.
The Insurer argues that “no general law” grants the circuit appellate court “jurisdiction to review a non-final order” (Answer Br. 18). As a threshold observation, Florida law considers an order granting appraisal as a non-final order, thus implicating Rule 9.130. 911 Dry Solutions, Inc. v. Fla. Family Ins. Co., 43 Fla. L. Weekly D1929[a] (Fla. 3d DCA Aug. 22, 2018); Citizens Prop. Ins. Corp. v. Casar, 104 So. 3d 384, 384-385 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D85a]. Rule 9.130(a)(1) applies “to appeals to the circuit court of non-final orders when provided by general law” (emphasis added).
Regarding an appeal from an order compelling appraisal, the third district recently held that the circuit appellate court correctly dismissed the appeal for “lack of jurisdiction.” 911 Dry Solutions, 43 Fla. L. Weekly D1929. The third district observed that the Legislature did not enact “a statute authorizing the circuit court to hear an appeal of such an order [compelling appraisal].” Id. (footnote omitted). See Shell v. Foulkes, 19 So. 3d 438, 440 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2039a] (clarifying that circuit courts “do not have any general jurisdiction under the appellate rules to review non-final orders” since no language in Chapter 26, Florida Statutes, gives a circuit court appellate jurisdiction “to review non-final orders merely entering a default”). We do not overlook that a panel from our circuit recently relied upon Shell and concluded that section 26.012(1), Florida Statutes (2004), did not authorize the panel to “review an order compelling appraisal as a non-final order.” Projekt Prop. Restoration, Inc. v. Fla. Family Ins. Co., Case No. 18-15 AP (Fla. 11th Cir. Ct. Oct. 22, 2018). Pursuant to 911 Dry Solutions, Shell, and Projekt Property, we conclude that the non-final order compelling appraisal does not invoke our jurisdiction under Rule 9.130(a)(1).
According to the Insurer, a certiorari proceeding provides “the only way” by which a circuit appellate court may review a non-final order. Relevant here, a district court determined that an “order compelling appraisal” did “not meet the requirements for certiorari relief” and dismissed the appeal for lack of jurisdiction. Burnett v. Clarendon Select Ins. Co., 920 So. 2d 188, 189 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D459a]. Following Burnett, we conclude that the order compelling appraisal does not invoke our certiorari jurisdiction.1
Since we do not possess jurisdiction to review the order compelling appraisal under section 26.012(1), Rule 9.130, or as a common-law certiorari proceeding, we dismiss this interlocutory appeal without prejudice to the Restoration-Company challenging this order on direct appeal. Due to the jurisdictional impediment, oral argument will benefit neither the Litigants nor us. Therefore, we remove this case from our November 14, 2018 oral argument calendar. See Fla. R. App. P. 9.320 (“On its own motion . . . , the court may . . . dispense with oral argument”).
The Restoration-Company requests appellate attorney’s fees pursuant to section 627.428, Florida Statutes (1982). To obtain section 627.428(1) appellate attorney’s fees, the Restoration-Company would need to demonstrate that it prevailed on appeal. By dismissing this interlocutory appeal for lack of jurisdiction, the Insurer prevails rather than the Restoration-Company. Arango v. United Auto. Ins. Co., 901 So. 2d 320, 321-322 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a]. Thus, we deny the Restoration-Company’s request for section 627.428 appellate fees.
DISMISSED WITHOUT PREJUDICE; ATTORNEY’S FEES DENIED; ORAL ARGUMENT CANCELLED.
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1In contrast, an order denying appraisal warrants certiorari review. See Progressive Am. Ins. Co. v. Collision Concepts of Delray, LLC, a/a/o Filipski, 23 Fla. L. Weekly Supp. 400a (Fla. 15th Cir. Ct. Sept. 28, 2015), cert. denied, Collision Concepts of Delray, LLC v. Progressive Am. Ins., 4D15-4036 (Fla. 4th DCA Dec. 18, 2015).
