Mt. Hawley Insurance Company v. Schmid Construction, Inc.

• Court: District Court of Appeal of Florida
• Decided: December 4, 2024
• Docket: 3D2023-1757
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed December 4, 2024. Not final until disposition of timely filed motion for rehearing.

No. 3D23-1757 Lower Tribunal No. 21-1020

Mt. Hawley Insurance Company, Appellant,

vs.

Schmid Construction, Inc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Butler Weihmuller Katz Craig LLP, Carol M. Rooney, and Adam M. Topel (Tampa), for appellant.

TorresVictor, Gregory A. Victor, Kenneth P. Carman, and Yadhira Ramírez-Toro (Fort Lauderdale), for appellees.

Before FERNANDEZ, BOKOR and GOODEN, JJ.

FERNANDEZ, J. Mt. Hawley Insurance Company (“Mt. Hawley”) appeals the “final

judgment” entered in favor of Schmid Construction, Inc. (“Schmid”) and Shul

of Bal Harbor, Inc. (“Shul”) (collectively, “Appellees”) on a complaint for

breach of contract, later amended to include an additional count for

declaratory relief. Because this is an appeal of a non-final, non-appealable

order, we dismiss for lack of jurisdiction as the case is not yet ripe for

appellate review.

Appellees brought a breach of contract action against Mt. Hawley for

failure to defend in the underlying wrongful-death action. Appellees later filed

a Motion for Leave to Amend Complaint/Verified Motion to Continue Motion

for Summary Judgment “to add a Count for Declaratory Relief as there is a

true and necessary need for the Court to determine whether the Plaintiffs are

entitled to insurance coverage and additional insured status from the

Defendants in this cause.” Appellees claim that the proposed amended

complaint was accidentally omitted from the motion. However, the amended

complaint was subsequently filed on May 3, 2023, attached to a notice of

filing that referenced the original motion for leave to amend, with a certificate

of service that the notice had been filed using E-Filing and therefore

furnished via email to all counsel of record. The trial court afterwards granted

Appellees’ motion for leave to amend.

2 After summary judgment was entered in favor of Appellees, on August

30, 2023, the trial court entered “final judgment” finding that “[Appellees] are

additional insureds under the Defendant’s insurance policy and entitled to

coverage under the Defendant’s policy of insurance.” The Court reserved

jurisdiction “to issue any other orders and to determine the amount of the

costs and fees to be awarded at a later date.”

On September 18, 2023, Appellees filed a “Notice of Readiness for

Trial (BENCH).” The notice stated that the “only matter pending before the

Court is the issue of damages,” and it requested that the “case be calendared

for the next available bench trial period.” That same day, Appellees also filed

a motion for attorney’s fees and costs against Mt. Hawley.

Mt. Hawley moved to strike Appellees’ Notice of Readiness for Trial.

Mt. Hawley explained that Appellees waived and abandoned any right to

recover compensatory damages by “submitting a Final Judgment to the court

for entry, which the Court entered.” Mt. Hawley argued, “The Court cannot

now UN-Adjudicate Plaintiff's Breach of Contract claim, having already

entered a Final Judgment on it.” The trial court denied the motion. Mt. Hawley

appealed.

3 The threshold issue in this case is whether the order on appeal

disposes of all issues in the complaint. We determine that it does not. This

Court has stated:

[W]e look not to the title. Instead, we review the content and substance to discern whether the order fully and finally determines the rights of the parties involved in the lawsuit. . . . When further judicial labor remains, an order is nonfinal, and the court retains jurisdiction to adjudicate the unresolved issues.

Colby III, Inc. v. Centennial Westland Mall Partners, LLC, 386 So. 3d 1003,

1005 (Fla. 3d DCA 2023).

Upon review of the record, we find that the amended complaint was

properly substituted in this case. The amended complaint contains two

counts against Mt. Hawley, for breach of contract and declaratory relief.

Looking at the plain language of the order on appeal, we find that it simply

declares: “[Appellees] are additional insureds under the Defendant’s

insurance policy and entitled to coverage under the Defendant’s policy of

insurance.” There is no finding of breach of contract and no mention of

damages. Therefore, the breach of contract count has yet to be resolved and

is pending before the trial court. Because judicial labor remains, the order on

appeal is a non-final, non-appealable order. See Id. (“[T]he court only

disposed of the first count of the complaint. This left the second count, the

claim for damages, ripe for further judicial labor.”); Fabre v. 4647 Block, LLC,

4 3D24-387, 2024 WL 4219455, at *1 (Fla. 3d DCA Sept. 18, 2024) (“Despite

its title and the SRS stamp, the ‘Final Judgment’ is not a final order. This

order did not fully dispose of the entire case. It only disposed of Count I of

the complaint. There is still judicial labor to be had—Count II.”).

Because this appeal is a non-final, non-appealable order, we dismiss

for lack of jurisdiction as the case is not yet ripe for appellate review. The trial

court retains jurisdiction to adjudicate the unresolved issues.

Dismissed and remanded for further proceedings.