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Johnson v. Levine6/23/1999
JAUARY TERM 1999
This is a medical malpractice action against several doctors, hospitals and other providers. The trial Judge ordered the parties to non-binding arbitration under section 44.103, Florida Statutes (1997). The arbitrator found some defendants liable in damages and others not liable. Those found liable responded to the arbitrator's decision by filing "exceptions" in which they failed to mention a trial de novo. At the same time plaintiff did timely request for a trial de novo, but only as against the defendants found not liable.
Plaintiff then moved for the entry of judgment against the defendants found liable, arguing that they had failed to file a timely request for a trial de novo and that their failure to do so made the arbitration award against each of them final and binding. She further contended that when the arbitration award thus became final, the trial Judge was required under section 44.103(h) to enter a money judgment against those defendants. The liable defendants opposed the motion, arguing that their "exceptions" should be treated in substance as requests for a trial de novo.
The trial Judge disagreed with this contention and found that these defendants had, in fact, failed to file a timely request for a trial de novo. But the trial Judge also refused to enter judgment against those defendants, reasoning instead that plaintiff's own request for a trial de novo against the exonerated defendants should be treated as a request for a trial of "the entire case," i.e. all the several and distinct claims in suit submitted to arbitration. Plaintiff has now sought a writ of mandamus from us to direct the trial Judge to perform what she characterizes as the non-discretionary and purely ministerial act of entering judgment against parties who fail to make a timely request for a trial de novo.
We first address the necessary question of our own jurisdiction. Section 682.20(1)(c) provides for appellate jurisdiction of orders that deny confirmation of an arbitration award. See § 682.20(1)(c), Fla. Stat. (1997). The first district has recently held that this statutory grant of appeal jurisdiction is invalid because of the supreme court's exclusive power to create appellate jurisdiction for non- final orders of the trial courts. City of Tallahassee v. Big Bend PBA, 703 So. 2d 1066 (Fla. 1st DCA 1997). Without deciding whether we agree with the Conclusion of the first district, we point out that chapter 682 applies only to arbitrations by agreement of the parties. See § 682.21 Fla. Stat. (1997) ("This law applies only to agreements and provisions for arbitration made subsequent to the taking effect of this law."). Hence, even if section 682.20(1)(c) properly allowed review by appeal of orders granting or denying confirmation of an arbitration award, we would be forced to conclude that such jurisdiction would be limited to arbitrations under chapter 682. Accordingly, we proceed on the assumption that we have no ordinary appeal jurisdiction of the present order.
If plaintiff has no remedy by appeal as to an order denying confirmation and enforcement of an arbitration award under section 44.103, we must proceed to analyze whether we have extraordinary writ jurisdiction under rule 9.030(b)(3) to review the order by certiorari or writ of mandamus. See Fla.R.App.P. 9.030(b)(3) and 9.100(a). Before the adoption of rule 9.130(a)(3)(C)(v) (district court has jurisdiction to review non- final order that determines entitlement of party to arbitration), the general view was that orders denying rights to arbitration could be enforced by common law certiorari. See e.g. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So. 2d 286 (Fla. 3d DCA 1980) (order denying m
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