MONICA SAMARA v. TENET FLORIDA PHYSICIAN SERVICES, LLC, etc.

• Court: District Court of Appeal of Florida
• Decided: February 17, 2021
• Docket: 21-0240
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 17, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0240 Lower Tribunal Nos. 18-35066, 18-35069 ________________

Monica Samara, Appellant,

vs.

Tenet Florida Physician Services, LLC, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.

Solnick Law, P.A., and Peter J. Solnick, for appellant.

Richard D. Tuschman, P.A., and Richard D. Tuschman (Davie); Lash & Goldberg, LLP, and Martin B. Goldberg, and David R. Ruffner, for appellees.

Before LINDSEY, HENDON, and BOKOR, JJ.

ON MOTION TO DISMISS LINDSEY, J.

This is an appeal from an order denying a motion for reconsideration

and rehearing. 1 Appellees have filed a motion to dismiss for lack of

jurisdiction. Because the order on appeal is not an appealable order and

does not suspend rendition of an appealable order, we grant the motion to

dismiss.

Appellant, Plaintiff below, Monica Samara is a former employee of

Appellee, Defendant below, Tenet Florida Physician Services, LLC. While

employed at Tenet, Samara worked with Appellee, Defendant below, Dr.

1 “Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap.” Seigler v. Bell, 148 So. 3d 473, 478 (Fla. 5th DCA 2014). As the Fifth District in Seigler further explained:

Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1390 n.6 (Fla. 3d DCA 1986) (citations omitted). Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998) (citations omitted).

Id. at 478-79.

2 Adrian Legaspi. The underlying action stems from allegations of sexual

harassment and retaliation. 2 On September 13, 2019, following an

evidentiary hearing, the court granted Tenet’s and Legaspi’s motions to

compel arbitration based on an arbitration agreement Samara had signed as

an employee. Samara did not appeal the non-final order compelling

arbitration. See Fla. R. App. P. 9.130(a)(3)(C)(iv) (authorizing appellate

review of non-final orders that determine “the entitlement of a party to

arbitration”).

Over a year later, on September 16, 2020, Samara filed a motion for

reconsideration and rehearing directed at the September 13, 2019 order

compelling arbitration. In her motion, Samara asserted she had amended

her complaint in arbitration and abandoned her claims for negligent and

intentional infliction of emotional distress and substituted a claim for

malicious prosecution. She argued that because the remaining claims for

malicious prosecution and defamation do not arise out of her employment,

they do not belong in arbitration. The court denied Samara’s motion on

January 6, 2021, and Samara appealed.

2 Samara filed separate lawsuits against Dr. Legaspi and Tenet. The two cases were subsequently consolidated.

3 An order on a motion for rehearing is not an appealable order. Fla. R.

App. P. 9.130(4) (“Orders disposing of motions for rehearing or motions that

suspend rendition are not reviewable separately from a review of the final

order . . . .”). “Moreover, an order that simply denies a motion for

reconsideration or rehearing of an underlying non-final order, such as the

one sought to be appealed in this case, is not in itself an appealable order.”

Agere Sys. Inc. v. All Am. Crating, Inc., 931 So. 2d 244, 245 (Fla. 5th DCA

2006).

In some instances, a motion for rehearing can toll rendition of an

appealable order, but that is not the case here. This is because motions for

rehearing are not authorized for non-final orders. See Fla. R. App. P.

9.130(a)(5) (“Motions for rehearing directed to these orders [appealable non-

final orders] are not authorized under these rules and therefore will not toll

the time for filing a notice of appeal.”); Philip J. Padovano, 2 Fla. Prac.,

Appellate Practice § 2:4 (2019 ed.) (“A motion can suspend rendition of an

order only if the motion is authorized under the rules governing the

proceeding in which the order was entered. For example, a motion for

rehearing does not suspend rendition of a nonfinal order because rehearing

is not authorized as to nonfinal orders.” (footnotes omitted)).

4 We therefore grant Appellees’ motion to dismiss and dismiss the

appeal.

Dismissed.