Chiropractic Clinics of South Florida v. the Responsive Auto Ins. Co.
This text of 250 So. 3d 729 (Chiropractic Clinics of South Florida v. the Responsive Auto Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Third District Court of Appeal State of Florida
Opinion filed May 30, 2018. Not final until disposition of timely filed motion for rehearing.
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No. 3D18-522 Lower Tribunal Nos. 14-3359 & 15-272 ________________
Chiropractic Clinics of South Florida, PL, a/a/o Juan Ogando, Petitioner,
vs.
The Responsive Auto Insurance Company, Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Celeste Hardee Muir, Jacqueline Hogan Scola, and Bronwyn C. Miller, Judges.
George A. David, P.A., and George A. David, for petitioner.
Law Office of Carlos D. Cabrera, LLC, and Carlos D. Cabrera (Hollywood), for respondent.
Before FERNANDEZ, SCALES and LUCK, JJ.
ON RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF CERTIORARI
SCALES, J. Petitioner Chiropractic Clinics of South Florida, PL, as assignee of Juan
Ogando (“Chiropractic Clinics”), seeks second-tier certiorari review of an opinion
rendered by the circuit court’s appellate division on June 12, 2017. We lack
jurisdiction to adjudicate Chiropractic Clinics’s petition, and therefore dismiss it.
The appellate division’s opinion affirming the county court’s final summary
judgment was rendered on June 12, 2017, and the clerk issued the mandate on July
25, 2017. Alleging that he did not receive the June 12, 2017 opinion of the
appellate division until July 27, 2017, when advised of it by opposing
counsel, Chiropractic Clinics’s counsel filed a motion in the appellate division to
strike the mandate on August 3, 2017.1 Further, on August 21, 2017, Chiropractic
Clinics filed a motion for rehearing directed toward the appellate division’s June
12, 2017 opinion.
On September 5, 2017, the appellate division entered an unelaborated order
denying Chiropractic Clinics’s motion to strike the mandate. Several months later,
on February 22, 2018, the appellate division entered another unelaborated order
denying Chiropractic Clinics’s rehearing motion. Chiropractic Clinics’s petition to
this Court was filed on March 20, 2018. The Responsive Auto Insurance Company
1 While the rules of appellate procedure provide no mechanism to “strike” a mandate, Florida Rule of Appellate Procedure 9.340(a), promulgated pursuant to section 43.44 of the Florida Statutes, provides that an appellate court may recall its mandate within one hundred twenty days of its issuance. We assume the appellate division treated Chiropractic Clinics’s motion to strike as one seeking to recall the appellate division’s July 25, 2017 mandate.
2 (“Responsive”) responded by filing the instant motion to dismiss Chiropractic
Clinics’s petition.
Florida’s district courts have certiorari jurisdiction to review final orders of
circuit courts acting in their appellate capacity. Fla. R. App. P. 9.030(b)(2)(B). In
order to invoke such jurisdiction, the petitioner seeking review must file the
petition within thirty days of rendition of the order to be reviewed. Fla. R. App. P.
9.100(c)(1); Pitzer v. Bretey, 95 So. 3d 1005, 1006 (Fla. 2d DCA 2012). Thus, in
order for us to have jurisdiction to review the appellate division’s June 12, 2017
opinion, Chiropractic Clinics’s petition would have to have been filed within thirty
days of June 12, 2017. Chiropractic Clinics’s petition was not filed until March 20,
2018.
Similarly, Chiropractic Clinics’s August 21, 2017 rehearing motion did not
toll the rendition of the appellate division’s June 12, 2017 opinion or extend the
time for issuance of the appellate division’s mandate. Only timely rehearing
motions – i.e., those filed within fifteen days of the filing of the opinion – extend
the time for issuance of the mandate. Fla. R. App. P. 9.340(b); Pitzer, 95 So. 3d at
1006 (stating that “because [Pitzer] filed no timely and authorized post-opinion
motion, rendition was not tolled”).
We therefore grant Responsive’s motion and dismiss Chiropractic Clinics’s
petition.
3 Petition dismissed.
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