Naghtin v. Jones By and Through Jones

• Decision Date: 04 September 1996
• Docket Number: No. 94-2001,94-2001
• Parties: 21 Fla. L. Weekly D1991 Walter Earl NAGHTIN, Sr., Walter Earl Naghtin, Jr., and Doris Naghtin, d/b/a Goldilocks and the Bears, Appellants, v. Gadis JONES, a Minor Child By and Through Gina JONES, His Natural Mother and Next Friend, and Gina Jones, Individually, Appellees.
• Court: Florida District Court of Appeals

Page 573

680 So.2d 573

21 Fla. L. Weekly D1991

Walter Earl NAGHTIN, Sr., Walter Earl Naghtin, Jr., and Doris Naghtin, d/b/a Goldilocks and the Bears, Appellants, v. Gadis JONES, a Minor Child By and Through Gina JONES, His Natural Mother and Next Friend, and Gina Jones, Individually, Appellees.

No. 94-2001.

District Court of Appeal of Florida,

First District.

Sept. 4, 1996.

Rehearing Denied Oct. 24, 1996.

Raymond Ehrlich of Holland & Knight, Jacksonville, for Appellants Naghtins and Goldilocks and the Bears, et al.

T. Geoffrey Heekin and Alan S. Wachs of Crabtree, Bartlett & Heekin, P.A., Jacksonville, for T.H.E. Insurance Company.

Maria P. Sperando of Gary, Williams, Parenti, Finney, Lewis & McManus, Fort Pierce, for Appellees.

BENTON, Judge.

This case raises the question whether, when parties to a lawsuit cannot agree on the effect of a purported settlement agreement and the trial court determines that the agreement settles part but not all of the case, we have jurisdiction to review the trial court's determination, even though the case--or part of it--remains pending in the trial court, because no judgment or other final order has been entered. We conclude that we do not have such jurisdiction.

Appellants are defendants in a suit for personal injuries inflicted by a bear. They have been here before. After judgment was entered against them in the amount of $1,267,750--including $750,000 awarded on a wage loss claim--they appealed, and we vacated the entire judgment. Naghtin v. Jones, 629 So.2d 1109 (Fla. 1st DCA 1994). During the pendency of the prior appeal, the parties entered into a so-called "high-low agreement," under which the defendants and their insurance company paid the plaintiffs $800,000, and agreed to pay an additional $400,000, depending on the outcome of that appeal.

On remand, the defendants argued against further proceedings on grounds the case had been settled, while the plaintiffs contended that the parties' agreement required the defendants to pay an additional sum of money and sought a court order requiring the payment. The trial court's order denying plaintiffs' motion to enforce settlement agreement declined to order any additional payment but decreed that "the plaintiffs may proceed to trial solely on the wage loss claim issue, noting a cap of $400,000 on any verdict...."

The present appeal is taken from this order, which is clearly not a final order reviewable under Florida Rule of Appellate Procedure 9.030(b)(1)(A), appellants' half-hearted protestations notwithstanding. The notice of appeal recites that the "nature of the order is a final order" or "[a]lternatively ... an appealable non-final order," and appellants' initial brief also asserts finality (again in the alternative) at least as to the insurance company:

This is an appeal from an order of the Circuit Court which ends all further judicial labor with respect to the T.H.E. Insurance Co., determines the immediate right to possession of $800,000.00 in settlement proceeds, grants partial rescission of a settlement agreement, and requires a limited new trial of the otherwise settled underlying tort action to determine the right to another $400,000 in settlement funds.

The order denying plaintiffs' motion to enforce settlement agreement does not end "all further judicial labor with respect to the T.H.E. Insurance Co." No money judgment has ever been entered against the insurance company. The insurance company was not even a party below. Addition of its name to the notice of appeal does not make it a party here. See Diehl v. United States, 438 F.2d 705, 711 (5th Cir.1971), cert. denied, 404 U.S. 830, 92 S.Ct. 67, 30 L.Ed.2d 59 (1971)("He was not a party below; he cannot be a party to this appeal."). Cf. Barendrecht v. Clark, 244 Or. 524, 419 P.2d 603 (1966)(indemnitor allowed to intervene on appeal). Regardless of the insurance company's party status, the order denying plaintiffs' motion to enforce settlement agreement is non-final.

This non-final order does not determine the right to immediate possession of the money appellants paid under the settlement agreement. In opposition to the plaintiffs' motion to enforce settlement agreement, the defendants contended that they should not have to pay any more than the $800,000 they had already paid under a settlement agreement which they argued was unambiguous and should be enforced. They did not ask for the money back. Certain contingent arguments in opposing memoranda notwithstanding, no party ever filed a motion seeking return of the $800,000 the plaintiffs received. Cf. Smith v. Daniel Mones, P.A., 458 So.2d 796 (Fla. 3d DCA 1984), approved in part, quashed in part, 486 So.2d 559 (Fla.1986). Plaintiffs have not cross appealed. We do not have jurisdiction to review a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

In ruling that the plaintiffs could pursue their wage loss claim, the non-final order entered by the trial court did not determine the issue of liability on the wage loss claim in favor of the plaintiffs. We do not have jurisdiction to review a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) or under Florida Rule of Appellate Procedure 9.130(a)(4). See Maryland Cas. Co. v. Century Const. Corp., 656 So.2d 611 (Fla. 1st DCA 1995); but see Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981); Lahav Flooring and Fixtures, Inc. v. Weinstein, 590 So.2d 1055 (Fla. 3d DCA 1991). Nor is this a case where our jurisdiction has been invoked to enforce a mandate. Cf. Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980); Department of Transp. v. Burnette, 399 So.2d 51 (Fla. 1st DCA), review denied, 408 So.2d 1092 (Fla.1981).

As for partially rescinding a settlement agreement and requiring a limited new trial, the trial court had plenary authority, once the case was remanded to it, to define the issues to be retried, in keeping with the mandate. Even when not incorporated in a court order, a stipulation in writing subscribed by the parties and their counsel, which is designed to obviate or delimit litigation, can and should be enforced by the judge before whom the case is pending. To the extent it was necessary to construe the parties' written settlement agreement in doing so, the trial court acted well within its jurisdiction. ^* To enforce a stipulation, a court must construe it. See Adams v. Ludwig, 473 So.2d 277, 277 (Fla. 5th DCA 1985).

If the trial court has misconstrued the parties' agreement, the defendants' remedy is by appeal from the final judgment (if an adverse judgment is ever entered against them). Although we have clear authority to treat a notice of appeal as a petition for writ of common law certiorari, in keeping with Florida Rule of Appellate Procedure 9.040(c)("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ...."), see Pridgen v. Board of County Comm'rs of Orange County, 389 So.2d 259 (Fla. 5th DCA 1980), review denied, 397 So.2d 777 (Fla.1981), the present case does not warrant the grant of a petition for writ of common law certiorari, either.

That a non-final order puts the parties to the expense of a trial that an appeals court may later determine to have been unnecessary is not a proper ground for the grant of a petition for writ of common law certiorari. Every order denying a motion to dismiss is of this nature. [I]n civil cases certiorari is rarely granted because the petitioner generally cannot show that any potential injury cannot be rectified on appeal. The caselaw is clear that "[c]ertiorari is not designed to serve as a writ of expediency and should not be granted merely to relieve the petitioners seeking the writ from the expense and inconvenience of a trial." Whiteside v. Johnson, 351 So.2d 759, 760 (Fla. 2d DCA 1977). See also Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)(litigation of a non-issue and inconvenience and expense of same not the type of harm sufficient to permit certiorari review); Continental Equities, Inc. v. Jacksonville Trans. Auth., 558 So.2d 154 (Fla. 1st DCA 1990)(fact that if ruling on damages was incorrect, matter would have to be retried after appeal and at great expense to the parties did not entitle petitioner to writ of certiorari to review the ruling); Kessel Const. Corp. v. Clark-Haney Dev. Team, 487 So.2d 1123 (Fla. 4th DCA 1986)(Glickstein, J., concurring)(cost of trial and appeal is not the kind of damage certiorari is intended to forestall); Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979)(fact that petitioner might have to go through a needless trial did not constitute material injury of an irreparable nature); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975)(fact that petitioner would have gone through trial under the burden of the order complained of, would incur substantial expenses for experts and case might need to be retried was not sufficient to show irreparable harm).

Riano v. Heritage Corp. of South Fla., 665 So.2d 1142, 1145 (Fla. 3d DCA 1996). On the other hand, the decision in Western Waste Indus., Inc. of Fla. v. Achord, 632 So.2d 680 (Fla. 5th DCA 1994)(granting a petition for common law certiorari and overturning an order setting aside an agreement reached in mediation) lends some support to the defendants' position that we should review the order denying plaintiffs' motion to enforce settlement agreement here.

But more was involved in Achord than construing a settlement agreement. Indeed, there seemed to be no question about what the parties in Achord had assented to. The Achord court characterized the order at issue there--which it found to be "a material departure from the essential requirements of the law"--as "most analogous to an order imposing [unauthorized] sanctions." 632 So.2d at 681. Nothing so dramatic occurred here. We are unwilling to open the floodgates to reviewing all non-final orders construing stipulations...