RICHARD L. SHURE, M.D. v. AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, AND

• Court: District Court of Appeal of Florida
• Decided: May 17, 2024
• Docket: 2023-1614
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D23-1614 Lower Tribunal No. 2018-CA-0002175-O _____________________________

RICHARD L. SHURE, M.D.,

Appellant, v.

AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS, AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS, and BRIAN S. ZIEGLER, M.D., Appellees. _____________________________

Appeal from the Circuit Court for Orange County. Kevin B. Weiss, Judge.

May 17, 2024

PER CURIAM.

Richard Shure, M.D. (“Shure”) appeals an order granting summary judgment

in favor of American Association of Orthopaedic Surgeons and American Academy

of Orthopaedic Surgeons (collectively “AAOS”).1 Shure contends that reversal is

warranted because there were genuine issues of material fact remaining on his claims

1 This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023. for defamation per se and civil conspiracy against AAOS. We disagree and affirm

without discussion.

Shure also contends the trial court improperly adopted AAOS’ proposed order

verbatim and urges us to reverse on this ground as well. Specifically, Shure argues

that there is an appearance that the judgment entered does not reflect the trial court’s

independent decision-making because the trial court never made oral rulings or

findings at the summary judgment hearing and then adopted verbatim a one-sided

proposed order which contained a typographical error.

As recently pointed out by our sister court, Florida law does not prohibit the

adoption, verbatim, of a judgment that has been proposed by a party to the litigation.

Tercier v. Univ. of Miami, Inc., No. 3D22-1334, 2023 WL 4916043, at *5 (Fla. 3d

DCA Aug. 2, 2023) (citing Smith v. Wallace, 249 So. 3d 670, 672 (Fla. 2d DCA

2017)); In re T.D. v. Dep’t of Child. & Fam. Servs., 924 So. 2d 827, 831 (Fla. 2d

DCA 2005). Instead, “what is critical for a reviewing court is that a final judgment

reflect the trial judge’s independent decision on the issues of a case, not that the

judge used words drafted by one of the parties to express that decision.” Id. (citing

Flint v. Fortson, 744 So. 2d 1217, 1220 (Fla. 4th DCA 1999)).

In the present case, both parties were allowed to submit proposed orders. Eight

days passed from the time that the parties’ submitted their proposals until the trial

court entered final judgment. During that time, Shure did not raise any objection to

2 AAOS’ proposed final judgment. It was not until after the trial court entered the final

judgment that Shure notified the trial court of his objections, including that the

judgment contained a typographical error, i.e. the judgment referenced an incorrect

count in Shure’s complaint (reference to Count IV should have been to Count III).

In its order denying Shure’s motion for rehearing, the trial court stated that

“[p]rior to issuing its Order, the Court reviewed both proposed orders in light of the

Court’s trial notes, the record and the briefs” and determined that AAOS’ proposed

order “accurately reflected the Court’s ruling, including the findings of fact and the

legal basis for the ruling.” In sum, the facts that gave rise to the Florida Supreme

Court’s concerns in Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004), wherein the

court found an appearance of impropriety, are not present here and accordingly, we

affirm. However, we remand for correction of the identified typographical error as

it is a scrivener’s error and the error was preserved below and has now been

presented on appeal. See generally Helton v. Gunderson, 708 So. 2d 1029, 1029 (Fla.

3d DCA 1988) (remanding “for correction of a scrivener’s error because the order

should have dismissed Counts II-XVII”).

AFFIRMED and REMANDED.

NARDELLA, WHITE and MIZE, JJ., concur.

Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, and Michael R. Lowe and Brian C. Evander, of Lowe & Evander, P.A., Sanford, for Appellant.

3 Phillip J. Sheehe and Johanna E. Sheehe, of Sheehe & Associates, P.A., Miami, for Appellees, American Association of Orthopaedic Surgeons and American Academy of Orthopaedic Surgeons.

No Appearance for Appellee, Brian S. Ziegler, M.D.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED