18 Fla. L. Weekly Supp. 162c
Online Reference: FLWSUPP 1802GONZ Insurance — Personal injury protection — Appeals — Premature — Certiorari challenge to discovery orders is premature where trial court has entered two irreconcilable orders without vacating either order
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, vs. AFFILIATED HEALTHCARE CENTERS, INC., A/A/O SWANILDA GONZALEZ, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-132-AP. L.C. Case No. 06-12074-CC-08. November 10, 2010.
[Editor’s note: County court order published at 16 Fla. L. Weekly Supp. 443a]Order Vacating Earlier Opinions and DismissingPetition for Writ of Certiorari
1. This cause came before the court upon a motion for rehearing or clarification by the respondent, Affiliated Healthcare Center, Inc.
2. In reviewing the conflicting opinions entered by the undersigned members of the appellate panel, grounds for clarification are more than evident. We appreciate the opportunity to resolve the conflicts.
3. We begin with the fundamental question of the trial court’s ruling, as two conflicting conformed copies of orders have been provided by the petitioner. One order overrules objections to a discovery request and requires responses in twenty days, and one order sustains the objections, and denies the motion to compel, and certifies a question to the Third District Court of Appeal. One order names Swanilda Gonzalez as “the insured” and one names another “claimant.” Because one order is a conformed copy and may not be filed in 06-12074-CC-05-08, we are unable to determine if the order has been entered by the clerk of the trial court and rendered for purposes of appellate review. See Burkette v. Sharp, 752 So. 2d 77, 78 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D444b].
4. At the time of our May 17, 2010 opinion in this matter, there was a motion to clarify unresolved by the trial court judge as to why there were two conflicting discovery orders. The motion to clarify also does not appear in the trial court’s docket; however, a clocked in copy of the first page is contained in the appendix to the petition for writ of certiorari.
5. We acknowledge that the Third District Court of Appeal has reversed an opinion of an appellate panel of our circuit, requiring production of the same types of documents requested in this case, in the absence of a trial court’s order reciting the most unusual or compelling circumstances. See United Automobile Insurance Company vs. Friedman Chiropractic Center, P.A., 23 So. 3d 213 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2507a]; however, before ruling on the merits of the petition for certiorari, we must first consider that the petition for relief is premature if the trial court has entered two irreconcilable orders without vacating one or the other. One of the orders could be a mistake, or the trial judge may have changed his mind. Accordingly, we vacate our earlier opinions dated May 17, 2010 and July 15, 2010.
6. As the petition for a writ of certiorari is premature until the trial judge’s ruling is clarified, it is unnecessary to address the other issues raised by the pending petition and the pending motion for rehearing and clarification.
7. The petition for writ of certiorari is dismissed, without addressing the merits of either order entered by the learned trial court judge. (Before FRIEDMAN, HARDEE MUIR, and BAILEY, JJ.)
