Harris v. Anne Bates Leach Eye Institute

Third District Court of Appeal
State of Florida

Opinion filed September 2, 2015.
Not final until disposition of timely filed motion for rehearing.

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No. 3D15-1458
Lower Tribunal No. 11-29025
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James S. Harris,
Petitioner,

vs.

Anne Bates Leach Eye Institute, et al.
Respondents.

An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.

James S. Harris, in proper person.

Fowler White Burnett, P.A., and Marc J. Schleier and Christopher E.
Knight, for respondents.

Before WELLS, ROTHENBERG and SCALES, JJ.

PER CURIAM.
Petitioner James S. Harris seeks leave of this Court to file a belated appeal

of the trial court’s August 29, 2012 order dismissing, with prejudice, Harris’s

medical malpractice complaint against the Respondents, Anne Bates Leach Eye

Hospital of the University of Miami1 and three individual doctors ( collectively,

the “Hospital”). For the reasons stated below, we deny the petition.

I. Facts.

In September of 2011, Harris, an inmate at a State of Florida correctional

facility, filed a civil rights action against Hospital. Essentially, Harris alleged

that he lost eighty percent of the vision in his right eye, and a consequent

diminishment of vision in his left eye, as a result of treatment by Hospital and a

follow-up surgical procedure by Hospital on November 3, 2004. At that time,

Harris was housed at a pre-detention center in Miami-Dade County.

Because Harris’s claims raised federal questions, Hospital removed the case

to federal court. After a series of procedural steps in the federal court, Harris’s case

was remanded to Miami-Dade Circuit Court, surviving as an action only for

medical malpractice.

On August 29, 2012, the trial court rendered a final judgment by

dismissing Harris’s medical malpractice claims based upon the four-year statute of

repose set forth in section 95.11(4)(b) of the Florida Statutes. Harris alleges in his

1Although this case, in part, is styled Anne Bates Leach Eye Institute, this
Respondent’s formal name is Anne Bates Leach Eye Hospital.

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current petition that he never received a copy of the trial court’s August 29,

2012 final judgment of dismissal.

About two and a half months after his claim was dismissed, with

prejudice, Harris then sought the issuance of subpoenas for his medical records.

When the trial court did not issue the sought-after subpoenas, Harris filed a petition

for a writ of mandamus with this Court in September of 2013, seeking to compel

the trial court to issue the subpoenas. We denied Harris’s petition for a writ of

mandamus. Harris v. Anne Bates Leach, No. 3D14-155 (Fla. 3d DCA April 14,

2014). It appears from the filings in this earlier mandamus case that Harris did

become aware that the trial court had dismissed his malpractice action back in

August of 2012.

On March 9, 2015, Harris filed a motion, pursuant to rule 1.540 of the

Florida Rules of Civil Procedure, seeking to set aside the August 29, 2012 final

judgment. In his motion, Harris argues that: (1) the dismissal should be set aside

because Harris did not receive a copy of the August 29, 2012 order, and (2) the

trial court misconstrued Florida’s statute of repose for medical malpractice claims.

Without setting his rule 1.540 motion for hearing, and prior to any trial court

consideration of this motion, Harris, on June 25, 2015, filed the instant petition

seeking leave to file a belated appeal of the August 29, 2012 final judgment of

dismissal.

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II. Conclusion.

The procedural mechanism for seeking leave to file a belated appeal is set

forth in rule 9.141(c) of the Rules of Appellate Procedure. A belated review is

available only in criminal cases. Rule 9.141(c) does not apply in the civil arena,

such as in the instant case which alleges medical malpractice. Lewis v. Days Inn

Motel, 145 So. 3d 826 (Fla. 2014) (Table).

If Harris is seeking for us to treat his petition as a petition seeking

mandamus relief (i.e., to compel the trial court to rule on Harris's rule 1.540

motion), we must deny such relief as well. Perez v. Circuit Court for Osceola

Cnty., 882 So. 2d 489 (Fla. 5th DCA 2004) (holding that a writ of mandamus to

compel a trial court to rule is improper when the petitioner has failed to bring his

motion to the trial court’s attention); see also Al-Hakim v. State, 783 So. 2d 293

(Fla. 5th DCA 2001).

Petition denied.