Opinion
No. 4D21-3025
04-06-2022
PEOPLE'S TRUST INSURANCE COMPANY, Appellant, v. Herbert SLAVIN, Appellee.
Patrick M. Chidnese of Bickford & Chidnese, LLP, Tampa, for appellant. No appearance for appellee.
Patrick M. Chidnese of Bickford & Chidnese, LLP, Tampa, for appellant.
No appearance for appellee.
Kuntz, J.
People's Trust Insurance Company appeals the circuit court's order denying its renewed motion for summary judgment. People's Trust's renewed motion sought to compel appraisal under an insurance policy. We dismiss the appeal because identical relief was previously denied in an order People's Trust did not appeal.
When People's Trust filed its third request for appraisal, the circuit court asked counsel for People's Trust the following question: "Let me ask you a question. I've heard this as on a motion to dismiss. I heard a motion for summary judgment. What's changed?" The change, counsel responded, was the summary judgment standard.
That is true. In In re Amendments to Florida Rule of Civil Procedure 1.510 , 317 So. 3d 72 (Fla. 2021), the Florida Supreme Court adopted the summary judgment standard used in the federal courts and at least thirty-seven other states. Id . ; see also In re Amends. to Fla. Rule of Civ. Proc. 1.510 , 309 So. 3d 192, 192 (Fla. 2020) (citations omitted).
It is also true that our supreme court specifically permitted a party to file a renewed motion for summary judgment relying on the new summary judgment standard. In re Amends. to Fla. Rule of Civ. Proc. 1.510 , 317 So. 3d at 77–78 (citing Wilsonart, LLC v. Lopez , 308 So. 3d 961, 964 (Fla. 2020) ).
But the relief sought in People's Trust's renewed motion for summary judgment was not a renewed motion based on the new standard. It was the identical request which the circuit court first considered when People's Trust moved to compel appraisal in response to the complaint. At that time, the court deferred ruling on People's Trust's motion, stating it would address the issue on summary judgment.
One month later, People's Trust filed its first motion for summary judgment seeking to compel appraisal. At the hearing, People's Trust told the circuit court it was purely a legal issue. But that motion for summary judgment was denied by "agreed" order. People's Trust had the right to appeal that order denying its right to appraisal within thirty-days, see Fla. R. App. P. 9.130(a)(3)(C)(iv) (2020), but it did not do so. Instead, after our supreme court amended the summary judgment rule, People's Trust filed a third motion seeking to compel appraisal. But nothing had changed. People's Trust sought to compel appraisal based on the same policy terms and based on the same issues of law. At the hearing, the circuit court again denied the requested relief, stating, "I'm once again going to deny the motion because it simply is a rehash of things we've heard before and everyone wants to bring it in what I think is inappropriate ways."
Like the initial motion to compel appraisal, People's Trust's first summary judgment motion was filed before People's Trust otherwise responded to the complaint.
An order denying summary judgment is not independently appealable. Mandico v. Taos Constr., Inc. , 605 So. 2d 850, 851 n.2 (Fla. 1992) ("Florida Rule of Appellate Procedure 9.130 does not provide for an appeal of an interlocutory order denying a motion for summary judgment."). The appealable portion of the order was the court's order determining the right "to an appraisal under an insurance policy." Fla. R. App. P. 9.130(a)(3)(C)(iv).
This third motion to compel was, in effect, a motion for rehearing of the original non-final order denying appraisal. And such a motion did not toll the deadline to appeal the original order. Couto v. People's Tr. Ins. Co. , 320 So. 3d 224, 225 (Fla. 3d DCA 2021) (dismissing the property owners’ appeal because the notice of appeal was untimely filed more than thirty days after the trial court's rendition of a nonfinal order denying the insurer's motion to dismiss the property owners’ complaint.).
We understand People's Trust's desire to obtain immediate review of the order denying the motion to compel appraisal. But People's Trust had right to immediate review which it needed to exercise within thirty-days of the original order. See, e.g. , Decktight Roofing Servs., Inc. v. Amwest Sur. Ins. , 841 So. 2d 667, 668 (Fla. 4th DCA 2003) ("Decktight waived its appeal of the nonfinal arbitration order and must wait until a final judgment is entered to seek review.").
There is no doubt the supreme court authorized renewed motions for summary judgment when it amended the summary judgment rule. But that is not what this case is about. Instead, People's Trust seeks to appeal the denial of its request for appraisal in an appealable nonfinal order originally rendered fourteen months before it filed the notice of appeal. The insured in Couto could not revive the right to appeal an appraisal order, and People's Trust cannot do so here. See Couto , 320 So. 3d at 225 (quoting LaCarrere v. Reilly , 987 So. 2d 816, 816 (Fla. 3d DCA 2008) ) ("Because the [property owners] filed their notice of appeal ... more than thirty days from ... rendition of the nonfinal order, ‘[t]he notice was untimely filed and this Court does not have jurisdiction to hear the appeal.’ ").
For now, we express no view on the merits of the appraisal issue. Review of the merits must wait until after the entry of final judgment. The appeal is dismissed for failure to seek review within thirty-days of the original order determining the right to appraisal under the insurance policy.
Appeal dismissed.
May and Forst, JJ., concur.