Chiropractic Clinics of South Florida v. the Responsive Auto Ins. Co.

Third District Court of Appeal
State of Florida

Opinion filed May 30, 2018.
Not final until disposition of timely filed motion for rehearing.

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No. 3D18-522
Lower Tribunal Nos. 14-3359 & 15-272
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Chiropractic Clinics of South Florida, PL, a/a/o Juan Ogando,
Petitioner,

vs.

The Responsive Auto Insurance Company,
Respondent.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Appellate Division, Celeste Hardee Muir, Jacqueline Hogan Scola, and
Bronwyn C. Miller, Judges.

George A. David, P.A., and George A. David, for petitioner.

Law Office of Carlos D. Cabrera, LLC, and Carlos D. Cabrera (Hollywood),
for respondent.

Before FERNANDEZ, SCALES and LUCK, JJ.

ON RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF
CERTIORARI

SCALES, J.
 Petitioner Chiropractic Clinics of South Florida, PL, as assignee of Juan

Ogando (“Chiropractic Clinics”), seeks second-tier certiorari review of an opinion

rendered by the circuit court’s appellate division on June 12, 2017. We lack

jurisdiction to adjudicate Chiropractic Clinics’s petition, and therefore dismiss it.

The appellate division’s opinion affirming the county court’s final summary

judgment was rendered on June 12, 2017, and the clerk issued the mandate on July

25, 2017. Alleging that he did not receive the June 12, 2017 opinion of the

appellate division until July 27, 2017, when advised of it by opposing

counsel, Chiropractic Clinics’s counsel filed a motion in the appellate division to

strike the mandate on August 3, 2017.1 Further, on August 21, 2017, Chiropractic

Clinics filed a motion for rehearing directed toward the appellate division’s June

12, 2017 opinion.

On September 5, 2017, the appellate division entered an unelaborated order

denying Chiropractic Clinics’s motion to strike the mandate. Several months later,

on February 22, 2018, the appellate division entered another unelaborated order

denying Chiropractic Clinics’s rehearing motion. Chiropractic Clinics’s petition to

this Court was filed on March 20, 2018. The Responsive Auto Insurance Company

1 While the rules of appellate procedure provide no mechanism to “strike” a
mandate, Florida Rule of Appellate Procedure 9.340(a), promulgated pursuant to
section 43.44 of the Florida Statutes, provides that an appellate court may recall its
mandate within one hundred twenty days of its issuance. We assume the appellate
division treated Chiropractic Clinics’s motion to strike as one seeking to recall the
appellate division’s July 25, 2017 mandate.

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(“Responsive”) responded by filing the instant motion to dismiss Chiropractic

Clinics’s petition.

Florida’s district courts have certiorari jurisdiction to review final orders of

circuit courts acting in their appellate capacity. Fla. R. App. P. 9.030(b)(2)(B). In

order to invoke such jurisdiction, the petitioner seeking review must file the

petition within thirty days of rendition of the order to be reviewed. Fla. R. App. P.

9.100(c)(1); Pitzer v. Bretey, 95 So. 3d 1005, 1006 (Fla. 2d DCA 2012). Thus, in

order for us to have jurisdiction to review the appellate division’s June 12, 2017

opinion, Chiropractic Clinics’s petition would have to have been filed within thirty

days of June 12, 2017. Chiropractic Clinics’s petition was not filed until March 20,

2018.

Similarly, Chiropractic Clinics’s August 21, 2017 rehearing motion did not

toll the rendition of the appellate division’s June 12, 2017 opinion or extend the

time for issuance of the appellate division’s mandate. Only timely rehearing

motions – i.e., those filed within fifteen days of the filing of the opinion – extend

the time for issuance of the mandate. Fla. R. App. P. 9.340(b); Pitzer, 95 So. 3d at

1006 (stating that “because [Pitzer] filed no timely and authorized post-opinion

motion, rendition was not tolled”).

We therefore grant Responsive’s motion and dismiss Chiropractic Clinics’s

petition.

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Petition dismissed.

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