Insurer’s Appeal Was Barred Because it Failed to Properly Preserve Appellate Issue in Court Below

Advanced Chiropractic & Rehab. Center, Corp. v. United Auto. Ins. Co. (Fla. 4th DCA 2012)

In a county court action, a chiropractic center sued an insurance company for PIP benefits, resulting in a settlement. When the center moved for attorney’s fees, a dispute arose over whether the center knew about an order of dismissal that had been entered in the case. The court held a hearing on the center’s subsequent 1.540(b) motion to vacate the order of dismissal. The hearing was held, without objection, in an informal fashion and without the swearing of witnesses.

After the county court granted the 1.540(b) motion and awarded the center attorney’s fees, the insurer appealed. The insurer’s claim on appeal was that the county court had abused its discretion in finding (1) that the motion for attorney’s fees was timely and (2) that excusable neglect existed sufficient to support rule 1.540(b) relief. The one-judge appellate panel of the circuit court reversed the county court order on the ground that there had been incompetent record evidence, a ground different from those raised by the insurer.

The Fourth District Court of Appeals granted the center’s second-tier petition for writ of certiorari and quashed the appellate decision of the circuit court, explaining that the circuit court had improperly reversed the county court since its reversal had been improperly premised on an issue that was neither preserved in the county court nor raised on appeal.