In Re: Amendment to Florida Rule of Appellate Procedure 9.130

• Court: Supreme Court of Florida
• Decided: July 6, 2023
• Docket: SC2023-0701
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC2023-0701 ____________

IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130.

July 6, 2023

PER CURIAM.

The Court, on its own motion, amends Florida Rule of

Appellate Procedure 9.130 (Proceedings to Review Nonfinal Orders

and Specified Final Orders). We have jurisdiction. See art. V, §

2(a), Fla. Const.; Fla. R. Gen. Prac. & Jud. Admin. 2.140(d).

In a concurrent opinion, we held that the First District Court

of Appeal did not have the authority to perform certiorari review of a

trial court’s denial of a motion to dismiss a medical malpractice

action under chapter 766, Florida Statutes. Univ. of Fla. Bd. of Trs.

v. Carmody, No. SC2022-0068 (Fla. July 6, 2023). However, we

acknowledged that “the Medical Malpractice Act changed the law

such that an interlocutory remedy for parties facing claims that fail

to satisfy its presuit requirements is warranted.” Id. at 3. Accordingly, we now amend Florida Rule of Appellate

Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal

orders that deny a motion to dismiss on the basis of the

qualifications of a corroborating witness under subsections

766.102(5)-(9), Florida Statutes. We identify subsections (5)-(9)

because those are the subsections that articulate the qualifications

of a corroborating expert witness. And we amend the rule to

provide for interlocutory review only when these particular motions

to dismiss are denied, as an order granting such a motion to

dismiss would as a general matter result in the plaintiff’s case being

dismissed without prejudice. See Morgan v. Blancher, 489 So. 2d

1217, 1218 (Fla. 2d DCA 1986) (“An order of dismissal with leave to

amend is not appealable because it is a nonfinal order.”).

We amend rule 9.130 as reflected in the appendix to this

opinion. New language is indicated by underscoring; deletions are

indicated by struck-through type. The amendments shall become

effective immediately. Because the amendments were not published

for comment previously, interested persons shall have seventy-five

-2- days from the date of this opinion in which to file comments with

the Court. 1

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and FRANCIS, JJ., concur. LABARGA, J., dissents with an opinion. SASSO, J., did not participate.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

LABARGA, J., dissenting.

I respectfully dissent to the majority’s decision to amend

Florida Rule of Appellate Procedure 9.130 on its own motion. This

amendment will permit interlocutory review of nonfinal orders that

deny motions to dismiss on the basis of the qualifications of a

1. All comments must be filed with the Court on or before September 19, 2023, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

-3- corroborating witness in medical malpractice cases. A rule change

of this magnitude should be referred to the appropriate committee

for consideration and recommendations prior to its adoption.

Original Proceeding – Florida Rules of Appellate Procedure

-4- APPENDIX

RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(1)-(2) [No Change]

(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:

(A)-(E) [No Change]

(F) deny a motion that:

(i)-(ii) [No Change]

(iii) asserts entitlement to sovereign immunity; or

(G) grant or deny a motion for leave to amend to assert a claim for punitive damages.; or

(H) deny a motion to dismiss on the basis of the qualifications of a corroborating expert witness under subsections 766.102(5)-(9), Florida Statutes.

(4)-(5) [No Change]

(b)-(i) [No Change]

Committee Notes

[No Change]

-5-