MACRI v. CLEMENTS AND ASHMORE CNM (2009)

District Court of Appeal of Florida,First District.

Joni MACRI, Nicodemo (Nic) Macri, and the Estate of Jena Macri, deceased, Appellants, v. CLEMENTS AND ASHMORE, P.A. d/b/a North Florida Women's Care, David O'Bryan, M.D., Rachel Depart, CNM, and Florida Birth-Related Neurological Compensation Association, Appellees.

No. 1D07-5818.

Decided: January 08, 2009

Donald M. Hinkle of Hinkle & Foran, Tallahassee, for Appellants. Rogelio J. Fontela and Meghan Boudreau Daigle of Dennis Jackson Martin & Fontela, Tallahassee, for Appellees Clements and Ashmore, North Florida Women's Care, and O'Bryan; Douglas P. Jones and Harold R. Mardenborough, Jr., of Carr Allison, Tallahassee, for Appellee Depart; Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Brewton Plante, P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Compensation Association; and Mark Hicks, Dinah Stein, and Erik P. Bartenhagen of Hicks & Kneale, P.A., Miami, for Appellees Clements and Ashmore, North Florida Women's Care, O'Bryan and Depart.

Upon consideration of the Appellants' Motion to Dismiss Cross-Appeal, as well as the cross-appellants' response thereto, the Court has determined that the cross-appeal should be dismissed. Contrary to the cross-appellants' suggestion, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(v) does not authorize immediate appellate review of an order that determines as a matter of law that a party is not entitled to immunity pursuant to Florida's Birth-Related Neurological Injury Compensation Plan (NICA). §§ 766.301-766.316, Fla. Stat. (2007). Furthermore, even if the lower tribunal's determination that the cross-appellants were not entitled to NICA immunity did fall within the scope of rule 9.130(a)(3)(C)(v), the cross-appellants failed to seek timely review. The ruling occurred in May 2006. The cross-appellants did not seek appellate review until this cross-appeal was filed in November 2007, well beyond the 30 days provided by Florida Rule of Appellate Procedure 9.130(b). Accordingly, the motion is granted and the cross-appeal is hereby dismissed.

PER CURIAM.

HAWKES, C.J., BARFIELD and DAVIS, JJ., concur.

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