Huy H. Tang and Dung D. Tran v. Citizens Property Insurance Corporation

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 7, 2025. Not final until disposition of timely motion for rehearing.

________________

No. 3D24-1987 Lower Tribunal No. 24-003602PIC ________________

Huy H. Tang and Dung D. Tran, Appellants,

vs.

Citizens Property Insurance Corporation, Appellee.

An Appeal from The State of Florida, Division of Administrative Hearings.

Law Group of South Florida, LLC, and Santino Ruiz, for appellants.

Shutts & Bowen LLP, and Ricky L. Polston and Daniel E. Nordby (Tallahassee); Shutts & Bowen, LLP, and Amy M. Wessel Jones (Fort Lauderdale), for appellee.

Before LOGUE, C.J., and SCALES and LINDSEY, JJ.

ON MOTION FOR REHEARING LOGUE, C.J.

Upon consideration of Citizens Property Insurance Corporation’s

motion for rehearing, we grant rehearing and withdraw the opinion filed

January 8, 2025, substituting the following opinion in its place. In doing so,

we also address the pending motion to dismiss for lack of jurisdiction filed by

Citizens.

Huy H. Tang and Dung D. Tran (“the Insureds”) made a claim against

their insurance company, Citizens. The Insureds maintained the claim was

covered under the policy whereas Citizens maintained the claim was not

covered. Citizens invoked the alternative dispute resolution provision in

section 627.351(6)(ll)1., Florida Statutes. Section 627.351(6)(ll)1. allows

Citizens to issue policies “that provide for the resolution of disputes regarding

its claim determinations, including disputes regarding coverage for, or the

scope and value of, a claim, in a proceeding before the Division of

Administrative Hearings.” In the alternative dispute resolution proceeding

that was convened, the Insureds filed a “Motion to Dispense with Arbitration

Proceeding,” which the Administrative Law Judge denied in an October 23,

2024 order captioned, “Order on Petitioners’ Motion to Dispense with

Arbitration Proceeding.” The Insureds seek review of that order.

2 Citizens has moved to dismiss the case for lack of jurisdiction. The

Insureds first suggest we have jurisdiction to review the order under Rule

9.130(a)(3)(I) of the Florida Rules of Appellate Procedure, which authorizes

nonfinal appeals of orders that “determine the entitlement of a party to

arbitration[.]” We reject this contention because Rule 9.130 deals with

nonfinal appeals from orders of courts – and the subject order is not an order

of a court.

At the outset, we note that a district court’s jurisdiction to review

nonfinal orders of courts stems from a different constitutional provision than

the jurisdiction to review nonfinal orders of administrative agencies. The

district court’s jurisdiction to review nonfinal orders of “trial courts” stems from

the Florida Supreme Court’s power to promulgate rules: “[A district court of

appeal] may review interlocutory orders in such cases to the extent provided

by rules adopted by the supreme court.” Art. V, § 4(b)(1), Fla. Const. In

contrast, the district court’s jurisdiction to review final or nonfinal

administrative orders stems from the Legislature’s power to enact general

laws: “District courts of appeal shall have the power of direct review of

administrative action, as prescribed by general law.” Art. V, § 4(b)(2), Fla.

Const.

3 Rule 9.130 reflects the Florida Supreme Court’s exercise of its power

to grant jurisdiction over nonfinal trial court orders. By its terms, Rule 9.130

applies to appeals to the district courts of appeal of the nonfinal orders authorized herein and to appeals to the circuit court of nonfinal orders when provided by general law. Review of other nonfinal orders in such courts and nonfinal administrative action shall be by the method prescribed by rule 9.100.

Fla. R. App. P. 9.130(a)(1). The first sentence quoted above refers to nonfinal

“orders” which is somewhat ambiguous as the term “order” can refer to both

court and administrative orders. See Fla. R. App. P. 9.020(f). But the

reference in the next sentence to “nonfinal orders in such courts” clarifies

that the reference to orders in the first sentence is to judicial orders. Fla. R.

App. P. 9.130(a)(1) (emphasis added). This reference is further clarified by

the distinction made between “nonfinal orders in such courts” and “nonfinal

administrative action.” Id. Tracking the Constitution, the rule thus establishes

two separate categories, with Rule 9.130 providing the method for review of

nonfinal orders “in such courts” and Rule 9.100 providing the method for

review of “nonfinal administrative action.”

The Insureds next propose Rule 9.100 as a ground for jurisdiction. As

relevant here, however, Rule 9.100 provides for nonfinal appeals only for

agency action under Chapter 120, the Administrative Procedure Act. See Fla.

R. App. P. 9.100(c)(3) (referring to “a petition to review nonfinal agency action

4 under the Administrative Procedure Act”); Fla. R. App. P. 9.190(b)(2)

("Review of nonfinal agency action under the Administrative Procedure Act,

including nonfinal action by an administrative law judge, . . . must be

commenced by filing a petition for review in accordance with rules 9.100(b)

and (c).").

The reach of the rule is limited in this way because, as explained

above, a general law is needed to establish jurisdiction and the only general

law so providing is a provision of the Administrative Procedure Act. See §

120.68(1)(b), Fla. Stat. (“A preliminary, procedural, or intermediate order of

the agency or of an administrative law judge of the Division of Administrative

Hearings is immediately reviewable if review of the final agency decision

would not provide an adequate remedy.”). Unfortunately for the Insureds’

argument, the Legislature expressly provided that the alternative dispute

resolution proceedings in section 627.351(6)(ll)1. “are not considered

chapter 120 administrative proceedings.” We therefore hold that nonfinal

orders issued by an administrative law judge of the Division of Administrative

Hearings as part of alternative dispute resolution proceedings pursuant to

section 627.351(6)(ll)1. do not come within the ambit of section 120.68(1)(b)

and thus are outside the ambit of Rule 9.100.

5 In the final analysis, the Insureds seek review of a decision issued

during an out-of-court “alternative dispute resolution” proceeding, which the

Insureds themselves at certain points characterized as an arbitration and

which partakes of many of the attributes of an arbitration. We see no basis

for this Court to take jurisdiction to review such an order while the proceeding

is ongoing. Accordingly, we dismiss the appeal for lack of jurisdiction.

Dismissed.