Doctor's Hospital of Hollywood, Inc. v. Madison
| Decision Date | 04 March 1982 |
| Docket Number | No. 60599,60599 |
| Citation | 411 So.2d 190 |
| Parties | DOCTOR'S HOSPITAL OF HOLLYWOOD, INC., Petitioner, v. Hunter W. MADISON, et ux., Respondents. |
| Court | Florida Supreme Court |
Mark Hicks of Daniels & Hicks, Miami, and the Law Offices of Mottlau & Wakefield, Miami, for petitioner.
Larry Klein, West Palm Beach, and the Law Offices of Rubin & Rubinchik, Hollywood, for respondents.
We have for review a decision of the District Court of Appeal, Fourth District, (Doctor's Hospital of Hollywood, Inc. v. Madison, 404 So.2d 132 (Fla. 4th DCA 1981)), which is certified to be in direct conflict with a decision of another district court of appeal (Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981)). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.
Respondent, Hunter W. Madison (plaintiff below, hereinafter plaintiff), filed a medical mediation claim against petitioner, Doctor's Hospital of Hollywood, Inc. (defendant below, hereinafter defendant), alleging that defendant and a doctor were negligent in an operation performed on plaintiff in 1971. Upon receiving notice of the medical mediation claim, defendant's administrator forwarded the same to defendant's parent corporation which turned the matter over to its attorneys. Because, however, of this Court's decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980), holding the Medical Mediation Act unconstitutional and all proceedings thereunder void, no answer was filed and the matter was not pursued. Plaintiff thereafter filed in circuit court a complaint alleging negligence on defendant's part, a copy of which was served on defendant's administrator on April 3, 1980.
According to an affidavit filed in the circuit court, the administrator, who is not an attorney, mistakenly assumed that the summons and complaint with which he was served were "subsequent filings" in the medical mediation action and so he failed to answer the same or to forward them to the parent company. Because of defendant's failure to respond to the complaint, the clerk of the circuit court entered a default on May 15, 1980. On August 27, 1980, plaintiff filed a motion for default judgment which was granted on October 10, 1980.
On January 15, 1981, defendant filed a motion alleging that the default should be set aside on the basis of mistake and excusable neglect and that defendant could raise as a defense to the action the statute of limitations. The circuit court denied the motion and defendant appealed the order to the District Court of Appeal, Fourth District.
In the district court, plaintiff filed a motion to dismiss the appeal on jurisdictional grounds. The court granted the motion, stating that it was adhering to its ruling in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980), and certified that its decision was in direct conflict with the Third District Court of Appeal's Silva decision. This review followed.
In Caribbean Agencies the Fourth District Court of Appeal was presented with an appeal of an order denying a motion to vacate a default judgment, as in the present case. In dismissing the appeal, the court held as follows:
This appeal brings before us an order denying a motion to vacate a default. We determine that since such an order is not appealable under either Rule 9.110 or Rule 9.130, Florida Rules of Appellate Procedure, we are without jurisdiction to consider this appeal. Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979).
In Silva, the third district court was likewise confronted with the question of whether an order denying a motion to vacate a default is appealable under Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure (1977). That court held that it is appealable "because it determines the liability in favor of a party seeking affirmative relief ...." 392 So.2d at 1006. In so holding, the court expressly adopted the reasoning of Judge Hersey's special concurrence (which despite its label, was actually a dissent) in Caribbean Agencies. We agree with the third district's resolution of this question for several reasons.
First, there is the language used in rule 9.130, which provides for review of non-final orders of lower tribunals which "determine the issue of liability in favor of a party seeking affirmative relief." Plaintiff argues that an order refusing to set aside a default judgment merely preserves the status quo and that liability is determined with rendition of the default order. Thus, he continues, "by no stretch of the imagination can it be said that an order denying a motion to vacate determines liability." We disagree.
An order denying a motion to vacate a default determines liability just as certainly as does an order of default. Webster's Third New International Dictionary, Unabridged, defines "determine" as, among other things, "to fix conclusively or authoritatively," "to settle a question or controversy about," and to "decide by judicial sentence." An order denying a motion to vacate a default judgment conclusively or authoritatively decides that the liability imposed by the default order will not be vacated. It settles the question or controversy, deciding by judicial ruling that the movant shall be liable as found in the original order. We agree that an order of default determines liability under rule 9.130(a), but, we find that an order denying a motion to vacate default does too. Both are appealable under the wording of the rule.
Plaintiff also argues that in light of the wording of Rule 4.2(a), Rules of Appellate Procedure (1962 Revision), the forerunner of rule 9.130, the language of the current rule prohibits review of the order here in question. Rule 4.2(a) specifically provided for interlocutory appeal from "orders granting or denying motions to vacate defaults...." Rule 9.130, in contrast, makes no specific provision for review of such orders, and the committee note to it states that it "substantially alters" the practice from that under rule 4.2(a). We do not agree, however, that the change indicates an intent to prohibit appeals like that dismissed in the case sub judice.
We find that the "substantial alteration" resulting from the change in language was the elimination of...
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