BERNARD T. SIMMONS, D.P.M., APPELLANT,
v.
MARY FRANCES FAUST AND JOHNNIE LEE FAUST, HER HUSBAND, APPELLEES
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The Florida Supreme Court held that orders of a Medical Mediation Panel's judicial referee are not appealable directly to the Supreme Court because the panel does not function as a trial court. The Court transferred the appeal to the District Court of Appeal for review via certiorari petition.
The Court held that orders of a Medical Mediation Panel's judicial referee are not appealable to the Supreme Court because the judicial referee is not functioning as a trial court. The mediation panel does not determine parties' legal rights finally but only produces findings that serve as evidence in subsequent circuit court proceedings, making it non-judicial in nature.
[1] Orders of trial courts passing upon the constitutional validity of a Florida Statute are appealable to the Florida Supreme Court.
[2] A judicial referee, even when a circuit judge, does not function as a trial court when acting in that capacity.
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Join FLexlaw to unlock all legal intelligence“When acting as a judicial referee, a circuit judge is not functioning as a trial court. At the least, a trial court determines parties' legal rights absolutely unless the decision is changed by an appellate court. A medical mediation panel does not perform this function.”
Establishes the core distinction that a mediation panel is not a trial court because it does not finally determine legal rights
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Join FLexlaw to unlock all legal intelligenceDr. Bernard Simmons, a podiatrist, was sued by Mary Frances Faust and her husband regarding podiatric services. The Medical Mediation Panel's judicial…
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PER CURIAM.
This is a direct appeal of the Medical Mediation Panel’s judicial referee’s order dismissing Faust’s action before the panel against Simmons, her podiatrist. The referee dismissed the claim because he found that Section 768.133, Florida Statutes (1975) which establishes the mediation panel and its jurisdiction did not apply to podiatrists. The referee also declared the statute constitutional.
Orders of trial courts passing upon the constitutional validity of a Florida Statute are appealable to this Court. Article V, Section 3(b)(1), Florida Constitution. The jurisdictional question this case presents is: Is the order of a Medical Mediation Panel’s judicial referee an order of a trial court? We conclude that it is not and transfer this appeal.
Judicial referees are circuit judges. Section 768.133(2), Florida Statutes (1975). This fact and the Legislature’s failure to provide a means of review for judicial referee orders have caused confusion in. the district courts, each of them treating attempts to review judicial referee orders in a different manner. See, e. g. State ex rel. Lund v. Keough, 352 So. 2d 572 (Fla. 2d DCA 1977) (review by certiorari); Cole v. Wallace, 354 So. 2d 885 (Fla. 4th DCA 1977) (review by certiorari); Scherer v. Liberto, 353 So. 2d 1224 (Fla. 4th DCA 1977) (review by appeal. See also, State ex rel. McGuirk v. Cowart, 344 So. 2d 624 (Fla. 3d DCA 1977) (writ of prohibition); State ex rel. Mercy Hospital, Inc. v. Vann, 342 So. 2d 1073 (Fla. 3d DCA 1977) (mandamus).
The Florida Constitution provides for only four types of courts and the Legislature may create no others. Article V, Section 1, Florida Constitution. When acting as a judicial referee, a circuit judge is not functioning as a trial court. At the least, a trial court determines parties’ legal rights absolutely unless the decision is changed by an appellate court. A medical mediation panel does not perform this function. Its findings function only as evidence in a circuit court proceeding. Section 768.-134(2), Florida Statutes (1975). And regardless of the panel’s determination, either party remains free to take the issue to circuit court and a full-fledged trial. Section 768.134(1), Florida Statutes (1975).
It is only in the trial court, after mediation proceedings have run their route, that the legal rights of the parties are finally determined. Since the medical mediation panel does not perform the essential function of a court, it is not one, and the judicial referee’s orders are not appealable.
The appeal is transferred to the District Court of Appeal, Second District, for disposition as a petition for a writ of common law certiorari.
It is so ordered.
OVERTON, C. J., and BOYD, ENGLAND, HATCHETT and ALDERMAN, JJ., concur. ADKINS, J., concurs specially with an opinion.
ADKINS, Justice,
concurring.
I concur. This case raises issues, among them the actual role of a judge in malpractice mediation proceedings and presence or absence of due process protections in mediation proceedings, which cause me to question the wisdom of our earlier rulings on the Act’s constitutionality. We cannot, however, reach them in this case since we do not have jurisdiction.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Broward Cnty. v. la Rosa, 505 So. 2d 422 (Fla. 1987)…ore its plain language; but would also vest the legislative branch with the authority to create courts other than the four types that the constitution authorizes.6 We have previously held that such legislative action is prohibited. Simmons v. Faust, 358 So. 2d 1358 (Fla.1978). We also find that the section 1672 -67(b)(8) violates article I, section 22 of the Florida Constitution, which provides in pertinent part that “[t]he right of trial by jury shall be secure to all and remain inviolate.” This provision se…
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Ballard v. Louie C. Curatolo, 363 So. 2d 864 (Fla. 4th DCA 1978)…ng time for commencement been entered. This is another case where the facts prompt us to express our agreement with Justice Adkins’ concern regarding the constitutionality of the Act as contained in his concurring opinion in Simmons v. Faust et al., 358 So. 2d 1358 (Fla. 1978). Medical mediation was instituted on May 2, 1977 by respondent’s filing requests for same with the clerk of the circuit court. On August 12, 1977, petitioner (one of the respondents below) filed a timely motion to extend time for hearin…
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Taylor v. Munroe Mem'l Hosp., 362 So. 2d 142 (Fla. 1st DCA 1978)…wer to dismiss the case without causing the parties further expense and time. The judicial referee’s order did not pretend to determine the parties’ legal rights absolutely, and petitioners may still complain in circuit court. See Simmons v. Faust, 358 So. 2d 1358 (Fla.1978) and Floyd v. Goss, 352 So. 2d 1189 (Fla. 4th DCA 1977). The petition for certiorari is DENIED. MILLS, Acting C. J., and BOOTH, J., concur. . Transition Rule 21 was replaced by the Florida Rules of Medical Mediation Procedure, effective…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Mercy Hosp., Inc. v. The Honorable Harold Vann, 342 So. 2d 1073 (Fla. 3d DCA 1977)
- State of Fla. ex rel. Marcia A. McGUIRK v. Honorable Edward D. Cowart, 344 So. 2d 624 (Fla. 3d DCA 1977)
- Cole v. Wallace, 354 So. 2d 885 (Fla. 4th DCA 1977)
- State of Fla. ex rel. Jack R. Lund, D.O. v. The Honorable Lawrence E. Keough & the Honorable Edward H. Bergstrom, Jr., 352 So. 2d 572 (Fla. 2d DCA 1977)
- Karten v. State, 353 So. 2d 1224 (Fla. 3d DCA 1977)
- William P. Scherer, M.D. v. Liberto, 353 So. 2d 1224 (Fla. 4th DCA 1977)