Johnson v. Levine

• Citation: 736 So.2d 1235
• Decision Date: 23 June 1999
• Docket Number: No. 99-0589.,99-0589.
• Parties: Janice JOHNSON, Personal Representative of the Estate of Ralph Johnson, deceased, Petitioner, v. Jonathan S. LEVINE, M.D.; Armand H. Katz, M.D.; Joseph Casey, M.D.; Debra Silkes, M.D.; Khosrow Maleki, M.D.; Edward M. Coopersmith, M.D.; Ronald J. Scott, M.D.; Sharon M. Townsend, M.D.; Humana, Inc., d/b/a Pompano Beach Medical Center; Humana Medical Plan, Inc., d/b/a Pompano Beach Medical Center; Galen Healthcare, Inc., and Community Hospitals of Galen, Inc., d/b/a Pompano Beach Medical Center; and Columbia Healthcare Corporation, d/b/a Pompano Beach Medical Center, Respondents.
• Court: Court of Appeal of Florida (US)

736 So.2d 1235

Janice JOHNSON, Personal Representative of the Estate of Ralph Johnson, deceased, Petitioner, v. Jonathan S. LEVINE, M.D.; Armand H. Katz, M.D.; Joseph Casey, M.D.; Debra Silkes, M.D.; Khosrow Maleki, M.D.; Edward M. Coopersmith, M.D.; Ronald J. Scott, M.D.; Sharon M. Townsend, M.D.; Humana, Inc., d/b/a Pompano Beach Medical Center; Humana Medical Plan, Inc., d/b/a Pompano Beach Medical Center; Galen Healthcare, Inc., and Community Hospitals of Galen, Inc., d/b/a Pompano Beach Medical Center; and Columbia Healthcare Corporation, d/b/a Pompano Beach Medical Center, Respondents.

No. 99-0589.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.

Rehearing Denied August 16, 1999.

Arnold R. Ginsberg of Ginsberg & Schwartz, Miami and Sheldon J. Schlesinger, P.A.,Fort Lauderdale, for petitioner.

Esther E. Galicia of George, Hartz, Lundeen, Flagg & Fulmer, Fort Lauderdale, for respondents Maleki.

Thomas E. Ice of Barwick, Dillian, Lambert & Ice, P.A., Miami for respondents Katz, Casey, Levine, and Silkes. Marlene S. Reiss of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for respondents Coppersmith.

FARMER, J.

This is a medical malpractice action against several doctors, hospitals and other providers.¹ 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.² 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 nondiscretionary 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 motion to compel arbitration). The common law writ of certiorari is available to review a non-final order in a civil action, however, only where the order departs from the essential requirements of law and leaves the party with no adequate remedy by final appeal. Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996). It could be argued that here review of the failure to confirm and enforce the arbitration award after a trial and final judgment in the entire action would be adequate, especially if the jury verdict were favorable to these defendants. In any case, the very restricted use of common law certiorari suggests that it would not be adequate.

Turning therefore to mandamus, it has been held that the writ is available to compel specific action by a trial judge "where the act sought to be compelled is ministerial in its nature, and where the court, if it acts at all, can only act in one certain way." State ex rel. North St. Lucie Drainage Dist. v. Kanner, 152 Fla. 400, 11 So.2d 889, 890 (1943). Plaintiff argues that section 44.103(5) imposes a non-discretionary, mandatory duty to enter judgments in favor of plaintiff and against the liable defendants who failed to request a trial de novo. She relies on the specific text in the last sentence of subsection (5), namely:

"If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party." [emphasis supplied]

We agree with her reading of section 44.103(5). Once a party involved in nonbinding arbitration of a specific dispute under section 44.103 fails to request a trial de novo, by the express terms of the statute the award becomes final and binding. A trial court has a mandatory duty to enforce final and binding awards by, among other things, entering such judgments as may be necessary and proper to enforce a final award made by the arbitrator. We therefore conclude that we have jurisdiction by way of mandamus.

On the merits of the petition, we again refer to the text of section 44.103(5), which in relevant part states:

"An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court.... If no request for trial de novo is made within the time provided, the decision shall be referred to the presiding judge in the case who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court, and for which judgments execution shall issue on request of a party." [emphasis supplied]

§ 44.103(5), Fla. Stat. (1997).³ As we have already indicated, these are not merely precatory provisions. They create the right to enforce an arbitration award that has become final and binding as a result of a failure to request a trial. There are only two real issues in this case. The first is whether the trial court correctly concluded that the liable defendants had failed to make a request for a trial de novo. The second is whether plaintiff's particularized request for a trial against only the exonerated defendants allows the trial judge to ignore the finality of the arbitration award as to some of the parties in a multi-party case and instead order a trial of all claims against all defendants.

The text of the liable defendants' responses to the arbitration awards does not support their argument that the responses were in substance a demand for a trial de novo. Actually there are three separate groups of liable defendants, and each of the three groups was represented by different law firms. The first group, the Malecki group, filed a three-page document styled "Exceptions to Arbitration Order." In it they challenge the evidentiary basis for the award, the finding of a deviation...