ANCHOR PROPERTY AND CASUALTY INSURANCE COMPANY v. FAIR (2019)

On September 24, 2018, Appellant Anchor Property and Casualty Insurance Company, filed a notice of appeal, seeking review of the trial court's August 31, 2018 order granting Appellee Roger Fair's motion for summary judgment and denying Appellant's motion for summary judgment. Appellee moved to dismiss the appeal as premature, properly noting that the subject order was a non-final, non-appealable order. See Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So. 2d 146, 149 (Fla. 3d DCA 2002) (“[T]he law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review.”).

In response to Appellee's motion to dismiss the appeal, and pursuant to Florida Rule of Appellate Procedure 9.110(l), Appellant moved to supplement the record to include a December 13, 2018 order from the trial court on Appellant's Motion for Entry of Final Judgment. While unclear from the face of the order, this December 13, 2018 order purports to grant the motion and enter final judgment for Appellee.¹

Apparently unhappy with the December 13, 2018 order entering final judgment in Appellee's favor, Appellee then filed with this Court a notice that he intended to file, in the trial court, a Florida Rule of Civil Procedure 1.530(b) motion for rehearing of the December 13, 2018 order. Appellee requested that this Court defer ruling on Appellant's motion to supplement the record with the December 13, 2018 order until the trial court adjudicated Appellee's rule 1.530(b) motion. Appellant responded with a notice of no objection.

To allow Appellee to obtain a ruling on his rule 1.530(b) motion for rehearing, this Court held the instant appeal in abeyance and required Appellee to file a status report. Appellee's status report states that the trial court will adjudicate Appellee's motion for rehearing on or about April 12, 2019. Interestingly, the status report, as confirmed by the record on appeal, also indicates significant activity, including Appellee's motion to amend the pleadings, Appellant's motion to stay and a trial court hearing on same, all occurring after the notice of appeal had been filed.

We are somewhat unclear as to the status of the lower court proceedings. We are clear, though, about two things: (1) we lack jurisdiction to review the August 31, 2018 order that has been appealed, and (2) we are uncomfortable with the parties seeking a host of continued adjudications in the trial court without any relinquishment of jurisdiction by this Court, which neither party has sought.

Given the continuing proceedings below, and the uncertainty as to how they will end, we decline to relinquish jurisdiction or further hold this appeal in abeyance, and dismiss this appeal, nunc pro tunc to September 24, 2018, so as not to affect the jurisdictional validity of any orders that may have been entered by the trial court after that date. We deny as moot all other pending motions.

Appeal dismissed, effective September 24, 2018.

Upon consideration of appellee's motion for appellate attorney's fees, it is ordered that said motion is hereby denied.

FOOTNOTES

1.   Appellant did not seek to amend its notice of appeal to include this December 13, 2018 order.

FERNANDEZ, LOGUE and SCALES, JJ., concur.