Windhaven Ins. Co. v. Biscayne Rehab Ctr., Inc.

243 So.3d 1034

WINDHAVEN INSURANCE COMPANY, Petitioner,

v.BISCAYNE REHAB CENTER, INC., Martinez Chiropractic, LLC, Palmetto Wellness Clinic, LLC, Progressive Rehabilitation and Orthopedic Services, LLC, and West Kendall Rehab Center, Inc., Respondents.

Nos. 3D18–0250

District Court of Appeal of Florida, Third District.

Opinion filed April 11, 2018.

Akerman LLP, Marcy Levine Aldrich, Nancy A. Copperthwaite, and Ross E. Linzer, for petitioner.

The Coyle Law Firm, P.A., and Melisa Lee Coyle, for respondents.

Before EMAS, FERNANDEZ and LINDSEY, JJ.

ON CONFESSION OF ERROR

LINDSEY, J.

In this petition for writ of certiorari, Windhaven Insurance Company ("Windhaven") seeks reinstatement of eighteen consolidated appeals which were dismissed by the appellate division of the circuit court for failure to timely file an initial brief. Upon commendable confession of error by Respondents Biscayne Rehab Center, Inc. Martinez Chiropractic, LLC, Palmetto Wellness Clinic, LLC and West Kendall Rehab Center, Inc., and because the appellate division of the circuit court entered conflicting orders and failed to afford Windhaven notice that the appeals would be dismissed, we grant the petition and quash the order of dismissal.

In late 2016, Windhaven filed notices of appeals of summary judgments entered by the county court in Respondents' favor. The appeals were subsequently consolidated by an administrative judge of the appellate division of the circuit court. On February 23, 2017, April 26, 2017, June 29, 2017, and September 18, 2017, Windhaven filed unopposed motions for extension of time to file its initial brief. Each of the four orders granting these extensions is stamped with the notation: "Failure to comply with this order may result in dismissal of the appeal or other sanction." The fourth order granted an extension through October 5, 2017.

On October 4, 2017, just one day prior to the deadline imposed by the fourth order granting an extension, Windhaven filed a fifth motion for extension of time to file its initial brief. On October 5, 2017, Respondents filed their objection to Windhaven's fifth motion and moved for dismissal of the appeals, contending that the initial brief had not been filed by the October 5, 2017 deadline and no motion for continuance had been granted. Moreover, Respondents requested dismissal "based upon the undue delay of [Windhaven] in filing its [i]nitial [b]rief."

Thereafter, on October 6, 2017, an associate administrative judge of the appellate division granted Windhaven's fifth motion and entered an order extending the time through December 4, 2017 for the filing of the initial brief. The extension order is stamped with the notation: "No further extensions will be granted and failure to comply with this order will result in the dismissal of this appeal."

On October 20, 2017, Windhaven filed its response in opposition to Respondents' motion to dismiss the appeals, requesting that the motion be denied as moot and frivolous in light of the fact that an order granting Windhaven's fifth motion for an extension through December 4, 2017 had already been entered. On October 25, 2017, just five days after Windhaven had filed its response in opposition to Respondents' motion to dismiss the appeals, the appellate panel entered an unelaborated order granting Respondents' motion to dismiss Windhaven's appeals.

On November 6, 2017, Windhaven filed a motion for rehearing and clarification, requesting that the appellate panel vacate the order of dismissal on the grounds it conflicts with the October 6, 2017 extension order entered by the associate administrative judge and violates Windhaven's due process rights. On November 8, 2017, Respondents filed their response to the motion for rehearing and clarification, wherein they conceded that the appellate panel erred procedurally and should have issued a direction to file the initial brief with a warning that failure to do so would result in dismissal.

On December 4, 2017, Windhaven filed its initial brief. On December 14, 2017, Respondents filed a motion for extension of time to file their answer brief. On December 18, 2017, another associate administrative judge of the appellate division granted an extension through February 24, 2018 for the filing of the answer brief. On January 23, 2018, the appellate panel, in an unelaborated order, denied Windhaven's motion for rehearing and clarification. This petition for writ of certiorari follows.

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) to review final orders of circuit courts acting in their review capacity. In considering a petition for second-tier certiorari review, this Court "exercises its discretion to grant review only when the circuit court has not afforded procedural due process or has violated a clearly established principle of law resulting in a miscarriage of justice." I Creatives, Inc. v. Premier Printing Solutions, Inc., 163 So.3d 606, 607 (Fla. 3d DCA 2015) (citing Ivey v. Allstate, 774 So.2d 679, 680 (Fla. 2000) ).

" Florida Rule of Appellate Procedure 9.300(b) provides for tolling proceedings pending disposition of certain motions. A motion for extension of time to file a brief tolls the time for filing until the motion is ruled on." Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 397 (Fla. 3d DCA 2009) (citing Kuznik v. State, 604 So.2d 37 (Fla. 2d DCA 1992) ).

Here, Windhaven filed its fifth motion for extension of time on October 4, 2017, just one day prior to the October 5,...