UNITED AUTOMOBILE INSURANCE COMPANY

v.

ALL CARE HEALTH & WELLNESS CENTER, A/A/O JEAN ROBE

a/a/o mm ROBERT FRANCOIS, - Appeliee. -J⁵'1 Opinion tiled: January 23, 2012 ‘ . ' Thomas L. I-iunker, Esq., ofUnited Automobile Insurance Company‘for Appellant p Stuart B. Yanofsky, EsqlofStuart B. Yanofsky, P.A. for Appellee ' ' 99* "‘ Before cuussrs H. MUIR, nounu) DRBSNICK, and scorrM, BB.RNS'TBH§l,’JJ Per Cmimn. ' . I Before this count is an appeal of the County Court’s decision which granted a new Automobile Ixfsuiance Company (United Auto), motion for summary judgment. The is requesting this court to reverse the trial eourt’s orders. For the reasons set forth belo reversing the County Court’s order which granted a new trial. However, we are refi'ai trl to e Appellee, All Care Health and Wellness Center (All Care), and denied the Appellant’s, United A . W , m s.o__Q - V‘ mt 22'-@\““ ‘ZN. “_ M3 “A ¢ pa!4 t to 'alth ppellant , we are 'gfi'om n ruling on the denial ofthe summaryjudgment sinceour decision to reverse the new trial order, in effect, reinstates the verdict in favor of United Auto, and renders moot the summary decision. ' judgment ll -..-_-_..L‘_‘.Z|__._._.__-_..__-.i-i l -s. .. J_ [*2] l -_._..i__._._._._.'.1J;__ -r l 1| is it l l .,..|tedAuto v. All Care a/a/0 Francois Facts A ' ' This appeal is an appeal ofa 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, zoos, the County Court ofthis circuit entered a finaljudgment finalizing a jury verdict finding in favor ofUnited Auto. Within l0 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 ofAll 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 $1 car owned by the injured passenger, which (tr upheld) shiited primary responsibility for PIP insurance from United Auto to the injured passenger's On September 26, 2006, the County Court granted a directed verdict on the medical expenses claim, and ordered a new trial on the operability ofthe car. Pertinent to the post-judgment proceedings and to this appeal is a Notice ofAppeal filed byAll Care prior to the trial com-t’s ruling granting a new trial. All Care’s notice of appeal was filed on December ‘Z, 2005, several mouths before a new trial was granted by the County Court. Thus, All Care its appeal prior to the final judgment on the second trial. On, November I⁵, 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 Cormty Court, the parties proceeded to convene the new trial. Tlrereatter, a final judgment was entered in favor of All Care. United-Auto filed this appeal. .. l . _ The gppeal . ' In its appeal, United Auto is requesting this court to (1) reverse the trial court's decision which allowed a new trial to proceed atier the Notice of Appeal was filed, and (2) to reverse the trial court’s decision which rejected United Auto's proffered, summaryjudgment evidence pertaining to the operability of the car. United Auto contends the filing of a notice of appeal divested the trial court ofits 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 ofcivil procedure governing summaryjudgment evidence. Page 2 of6 r .'..L._.L._..L. _._.. i :l t-i l I I [*3] I I rm.-=5‘;::.'l I ,-_.. é i I E L l r t ll (,...tea'Auto v. All Care a/a/0 Francois Because we agree with United Auto’s initial contention regarding the trial court’s authority to grant a new trial, a determination ofwhether a sworn statement‘was compliant with the rules of procedure is not essential for a resolution ofthis appeal. Accordingly, we have limited our scope ofreview 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 ofthe appeal ofthe final judgment. This court finds that the trial court did err, and its decision, granting a new trial, should be reversed. _ Stanggrg gfRgvi§1 < ' A . " ' V _ _ Generally, appellate courts reviewing lower court decisions granting new trials defer to the trial courts’ discretion since "such decisions usually involve a discretionary determination ofwhether thejury verdict is againstthe manifest weight ofthe evidence. Allstate Ins. Q9, v, Managsg, 707 So. 2d lll0 (Fla. i998). 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 couit’s discretion. A reviewing court is fiee-to make an independent, dc novo detennination as to whether granting a new trial was a correct legal. conclusion based on the‘ facts oftlie case. Gener Contractors of America Inc. vl Stin 524 _So._ _za ms (Fla; as ucA19sa);rm1tp Padovano,‘Florida Appellate Practice, §l9:5 Jurisdiction Pending Review (201 I-2012 ed.). T - Based on a de novo review ofthe record and governing law, we find that All Care’s notice of appeal, filed during the pendencyofits motion for a new trial, constituted an abandomnent ofthe motion and divested the trial court ofjurisdiction to grant a new trial.‘ ' Qvgrning Law Under Fla. R. App. P. 9.020(h)(3), the trial court loses jurisdiction to consider and rule on a postjudgment motion for a new trial upon the filing of a notice‘ of appeal by the patty which requested the new trial. _ Z ' Page 3 of6 h I a ._:...;._;_. [*4] Ii '1 E i, -_i_,.__._.,_.,--._-.-Z,-,.r I -.4 l l i

I I/r|lf8dAlll'0 v. All Care a/a/0 Francois Appellate rule 9.02001), which governs final judgments, addresses the types of motions which delay rendition of the final ijudgment, 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) ' [nr a final order has been entered and there has beenzfiled 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 afler sentencing, . . . or to vacate an order based» upon the recommendations of a hearing ofiicer . . . . the following exceptions apply: _ - (3) If such a motion or motions have been filed and a ngtigp of appeal is " ' filed before tlhnggf aJigped,_wrltten order disposinggof .alIsu_ch motions, all motionaiiled by the ap_p,tgling_party that areeperidjpg at the time shall be deemQ__ql;g,ndoned, and the final order shall be deemed ‘ rendered by the filing ofthe notice ofappeal as to all claims between patties r who ~then have inc? such motions pending‘ between them. ' (emphasis . supplied) ’ ‘ " I ’ . Fla. R. App. P. 9.020(h)(3), (2011 rev. ed.). __ Thus, in accordance with the express provisions of the rule, the tiling of a notice of appeal operates as an abandonment of a post-trial motion for a new ‘trial, ifthe notice of appeal is filed before the disposition ofthe motion. " ' '_ . t I r In in re Forfeiture of $104,591 in 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 pcscjudgment motion is considered, versus instances when a notice of appeal will effectively operateas a waiver or an abandonment of a pending post-judgment motion. ' I Page 4 of6 1. I -w [*5] i ti 'r I I ! .1 I r I| it i I ....eo‘Auto v. All Care a/a/0Francois 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 Forfeituj;g_$104,59l US_ Currency, 578 So. 2d 727 (Fla. 3d DOA 1991) versus the First District Court ofAppeal’s decision in Lggpgrd v. State, 489 So. 2d 859 (Fla. lst DCA 1986) and the Fourth District Court ofAppea1’s decision in , 492 So. 2d 756 (Fla. 4th DCA 1986). The Third District CourtofAppeal’s case originally arose item a forfeiture suit filed by Metro-Dado Police Department against Ruben Gonzalez. The trial court entered a final judgment of forfeiture. Thereafter, Gonzaleztimely 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 ofAppeal denied the request, and ruled the filing of the notice of appeal divested the trial court’s jurisdiction, and constituted an abandonment of the $1161.!-PBl1(1ing_p0Bl-judgnent motion. S78 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. LL, at_ 728. Those districts held that a notice. of appeal, filed while post-trial motions are pending, will be treated as a pretnaturely filedappeal that shall exist in a I ,.:_~.: state oflimbo until the trial court mics on the motions. ’ The Supreme Court resolvedthe conflict by approving the principle set forth in the Third District Court of Appe'al’s decision, and overruling those courts which have held in ebeyanee a notice of appeal until all post-judgment motionswere resolved._ The reason espoused for this holding is to avoid administrative contusion thatcould arise during they appellate process if the appealed decision is altered at the trial level. Q, at 285. Y . Essentially, the Florida Supreme Court views a notice ofappeal es having the attributes ofa final judgment, ‘given its purpose is to alter the judgment appealed. _I_t1., 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. Page S of6 E i l l [*6] I. ....edAu1o v. All Care a/a/0 Francois tiller _ _ p ' Thus, the waiver or abandonment rule set forth in 9.0_20(h), as confirmed by In Re F0l'f6il_tg6 $104,591 in US _ Currency, when applied to the pending case, effectively renders All Care’s motion fora new trial automatically waived once it pursued an appeal during the pendencyofthe motion, albeit inadvertently. V ._ W I As gleaned ti-om the record, the notice of appeal was filed nearly⁵ months alter 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 conferredjtlrisdiction to the appellate court, thereby divesting the trial court of jurisdiction to consider the post-trial motion. Having lost jurisdiction, the trial courtwas precluded from convening a new trial. For this reason, this Court finds that the County Court's decision to grunt 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 ofwhether the verdict in favor ofUnited Auto should be reinstated. A llateA rne’Fs _ " We also find United Auto is the prevailing puny, 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. Q @9121 '%

CELESTE H. MUIR

RONALD DRBSNICK

" ‘SCOTT M. BERNSTBIN (->.)—('z. - '1W‘ M“? q‘ 300* . Page 6 of6 |1 I .1 t | -I .5..-.-:. I l t i