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concluding trial court is without "jurisdiction to clarify or modify a non-final order" pending on appeal
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No. 1D21-2253
06-01-2022
HERITAGE PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. David WILLIAMS and Holly Williams, Appellees.
Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellant. Gregory C. Littman of Freundlich & Littman, LLC, Miramar Beach, for Appellees.
Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellant.
Gregory C. Littman of Freundlich & Littman, LLC, Miramar Beach, for Appellees.
BILBREY, J.
Heritage Property & Casualty Insurance Company appeals an order compelling an appraisal of property allegedly damaged by Hurricane Michael in October 2018. Because a fact question exists as to whether the insureds, David and Holly Williams, complied with their post-loss obligations, we reverse and remand for further proceedings.
After a dispute arose, the insureds demanded an appraisal under their homeowner's insurance policy with Heritage. Following a brief, non-evidentiary hearing, the trial court granted the insureds’ demand for appraisal over Heritage's objection. Heritage appeals that order, and our review is de novo. See MKL Enters. LLC v. Am. Traditions Ins. Co ., 265 So. 3d 730 (Fla. 1st DCA 2019).
Before a trial court can order an appraisal, certain requirements must be met:
Initially, "[b]efore a [trial] court can compel appraisal under an insurance policy, it must make a preliminary determination as to whether the demand for appraisal is ripe." Citizens Prop. Ins. Corp. v. Admiralty House, Inc. , 66 So. 3d 342, 344 (Fla. 2d DCA 2011) (citing
Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass'n 12 Inc ., 54 So. 3d 578, 581 (Fla. 3d DCA 2011) ). A demand is ripe where postloss conditions are met, "the insurer has a reasonable opportunity to investigate and adjust the claim," and there is a disagreement regarding the value of the property or the amount of loss. Id . at 344 (quoting Citizens Prop. Ins. Corp. v. Galeria Villas Condo. Ass'n , 48 So. 3d 188, 191 (Fla. 3d DCA 2010) ); see also State Farm Fla. Ins. Co. v. Hernandez , 172 So. 3d 473, 476-77 (Fla. 3d DCA 2015) ("The law in this district is clear and has been for nearly twenty years: the party seeking appraisal must comply with all post-loss obligations before the right to appraisal can be invoked under the contract.").
Am. Cap. Assurance Corp. v. Leeward Bay at Tarpon Bay Condo. Ass'n, Inc. , 306 So. 3d 1238, 1240–41 (Fla. 2d DCA 2020), rev. granted SC20-1766, 2021 WL 416684 (Fla. Feb. 8, 2021).
Heritage has acknowledged that the insureds incurred at least some loss, has made some payment to the insureds, and has conducted at least one inspection of the insureds’ property. Nonetheless, Heritage argues an appraisal should not have yet been ordered because the insureds have not satisfied all their post-loss obligations under the insurance policy. Heritage states that a second inspection and an updated proof of loss from the insureds were necessary after the insureds substantially increased their claim. The insureds counter that they have fully complied with all post-loss requirements in the policy. At the hearing on the insureds’ motion for an appraisal, no evidence was offered or testimony taken to resolve this dispute.
As this court explained in MKL , appraisal clauses are generally "preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits." Id . at 731 (quoting First Protective Ins. Co. v. Hess , 81 So. 3d 482, 485 (Fla. 1st DCA 2011). However, it is a fact question "whether an insured has sufficiently complied with a policy's post-loss conditions so as to trigger the policy's appraisal provision." People's Tr. Ins. Co v. Ortega , 306 So. 3d 280, 284 (Fla. 3d DCA 2020). Our review of the record on appeal does not resolve this fact question, so further proceedings before the trial court are necessary. See Admiralty House , 66 So. 3d at 344 (citing Citizens Prop. Ins. Corp. v. Gutierrez , 59 So. 3d 177 (Fla. 3d DCA 2011) ).
In MKL we stated, "Appraisals are appropriate where an insurance company ‘admits that there is a covered loss, but there is a disagreement on the amount of loss.’ " 265 So. 3d at 731 (quoting Johnson v . Nationwide Mut. Ins. Co ., 828 So. 2d 1021, 1025 (Fla. 2002) ) (emphasis in Johnson ). The insurer in MKL sought the appraisal, so there was no argument that the insured did not comply with its post-loss obligations. Our decisions in Castle Key Insurance Company v. Fischer , 312 So. 3d 1066 (Fla. 1st DCA 2021), and State Farm Florida Insurance Company v. Sheppard , 268 So. 3d 1006 (Fla. 1st DCA 2019), likewise involved insurers seeking appraisals, meaning that the insureds’ compliance with post-loss obligations was not in question.
As an alternative basis to affirm, the insureds argue that this appeal is moot because, after the appeal was taken of the non-final order, the trial court amended the order of appraisal. That amended order is not before us, but both parties have referenced it in their briefs. During an appeal of a non-final order, a trial court may proceed with all matters, including trial or final hearing except for entry of a final disposition, unless there has been a stay entered. See Fla. R. App. P. 9.130(f). But a trial court lacks jurisdiction to clarify or modify a non-final order while an appeal of that non-final order is pending. See Soles v. Soles , 536 So. 2d 367 (Fla. 1st DCA 1988) ; see also Garrison v. Vance , 103 So. 3d 1041, 1042 n.4 (Fla. 1st DCA 2013) (citing Soles with approval); Jones v. Jones , 703 So. 2d 501, 501 (Fla. 1st DCA 1997) (same). So, the trial court's amending the appraisal order cannot be a basis to avoid our review of the original appraisal order.
REVERSED and REMANDED .
B.L. Thomas and Winokur, JJ., concur.