Arch Insurance Company v. Lender Processing Services, Inc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-2315
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ARCH INSURANCE COMPANY,
Appellant,
v.
LENDER PROCESSING SERVICES,
INC.,
Appellee.
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On appeal from the Circuit Court for Duval County.
Tyrie W. Boyer, Judge.
August 29, 2019
PER CURIAM.
We grant Appellee’s motion to dismiss, and dismiss this
appeal. The order on appeal, rendered May 23, 2019, merely
repeats the lower tribunal’s ruling in 2016 that there was no valid
settlement agreement between these parties. The 2016 order was
nonfinal and not appealable. However, a new provision of the
nonfinal appeal rule became effective January 1, 2019, authorizing
appeals of nonfinal orders that determine “that, as a matter of law,
a settlement agreement is unenforceable, is set aside, or never
existed.” Fla. R. App. P. 9.130(a)(3)(C)(xii). See In re Amendments
to Florida Rules of Appellate Procedure-2017 Regular-Cycle
Report, 256 So. 3d 1218 (Fla. 2018).
Starting late in 2018, Appellant attempted to revisit the 2016
ruling by filing new motions raising the same issues on the same
facts, culminating in a 2019 order on motion for partial summary
judgment and then a “partial summary judgement [sic]” that
references the court’s earlier rulings and the reasons for them. The
2019 order appealed was a republication of the trial court’s 2016
ruling, and did not open a window for an interlocutory appeal
under the new appellate rule. See Henderson v. Tandem Health
Care of Jacksonville, Inc., 898 So. 2d 1191, 1192 (Fla. 1st DCA
2005) (holding rendition of new order requiring rescheduling and
active participation in arbitration was not appealable as order
determining entitlement to arbitration, which had been
determined in earlier order that was not appealed); Churchville v.
Ocean Grove R.V. Sales, Inc., 876 So. 2d 649, 651 (Fla. 1st DCA
2004) (holding rendition of new order materially the same as prior
order that was not appealed did not open new appeal window); see
also, e.g., Shannon v. Cheney Bros. Inc., 157 So. 3d 397, 399 (Fla.
1st DCA 2015) (noting that non-appealable nonfinal orders may be
reviewed on plenary appeal as explained in Fla. R. App. P. 9.110(h)
and Fla. R. App. P. 9.130[h]).
Accordingly, this appeal is DISMISSED. All pending motions
are denied as moot.
LEWIS, ROWE, and KELSEY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jeptha F. Barbour and Edward L. Birk of Marks Gray, P.A.,
Jacksonville; Peter D. Webster of Carlton Fields, P.A.,
Tallahassee, for Appellant.
James D. Gassenheimer and Paul A. Avron of Berger Singerman
LLP, Miami, for Appellee.
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