In First Cmty. Ins. Co. v. Adjei, 365 So. 3d 1208 (Fla. 3d DCA 2023), the Third District considered a first-party property insurance case in which the trial court entered a nonfinal order compelling appraisal. The appellate court held that the trial court violated the insurer’s due process rights by considering and adjudicating the appraisal issue when no proper motion thereon was pending or noticed for hearing.

On December 28, 2021, the insureds filed a complaint for declaratory relief against the insurer in the Miami-Dade County circuit court. The complaint alleged, in part:

First Community issued a homeowners’ insurance policy covering the Adjeis’ Miami home for the policy period between November 16, 2016 and November 16, 2017. On or about September 10, 2017, the Adjeis’ home suffered damage during Hurricane Irma, and they notified First Community of the loss. First Community adjusted the loss and tendered a loss payment, but the Adjeis’ claim the payment was inadequate. The Adjeis now seek a declaration as to whether they may invoke the subject policy’s appraisal provision without first complying with First Community’s demand that they submit “evidence individually, or through qualified experts, [regarding] the efficient proximate cause of the loss and/or the actual cash value of the damages” sustained during the hurricane.

Rather than file an answer, the insurer moved to dismiss the insureds’ complaint on grounds that the pleading failed to adequately allege a valid cause of action and that res judicata barred the lawsuit. The insurer moved separately to strike the insureds’ complaint as a sham pleading and to impose sanctions against the insureds and their counsel pursuant to section 57.105 of the Florida Statutes. The trial court, sua sponte, then entered an order setting an August 4, 2022 case management conference to entertain the following issues:

The court intends to specifically address the following motion matter:

Case Management Conference

In addition, the parties shall be prepared to argue and address all pending motions and issues in the case, including time-frame to complete discovery, for filing dispositive motions, and trial settings.

(Emphasis added).

The only pending motions at the time of the case management conference were the insurer’s motions to dismiss the complaint, to strike the complaint as a sham pleading, and for sanctions. At the case management conference, though, over the insurer’s objection, the insureds’ counsel made an ore tenus motion to compel an appraisal. The trial court granted the ore tenus motion and entered the appraisal order that, in relevant part, ostensibly awarded the insureds the very relief sought in their complaint:

The parties are ordered to attend appraisal within thirty (30) days of the date of this Order as ordered by this Court over Defendant’s objections. Plaintiffs did not file a Motion to Compel Appraisal with the Court and raised the Motion to Compel Appraisal ore tenus at the Case Management Conference on August 4, 2022.

After the insurer unsuccessfully sought reconsideration of the appraisal order, it timely filed an appeal. The Third District noted:

“A trial court violates a litigant’s due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing.” Epic Metals Corp. v. Samari Lake E. Condo. Ass’n, 547 So. 2d 198, 199 (Fla. 3d DCA 1989). Although our record contains no transcript of the case management conference and the appraisal order does not explicate the trial court’s reasons for ordering an appraisal, we are still able to provide meaningful review here because legal error is plainly evident on the face of the record. See Ferry v. E-Z Cashing, LLC, 361 So.3d 905, 907 (Fla. 2d DCA Apr. 5, 2023) (“The absence of a transcript does not hinder our review when a legal error plainly appears on the face of the record.”); Klinka v. Klinka, 959 So. 2d 383, 385 (Fla. 5th DCA 2007) (“[W]hen … the deficiencies are obvious on the face of a final judgment, record or order, the existence of a transcript of proceedings is irrelevant to resolution of such claims and appellate review is not precluded.”).

Based on the language of the trial court’s order setting the case management conference, reasoned the Third District, the insurer attended the case management conference prepared to argue only its pending motions to dismiss the complaint, to strike the complaint, and for sanctions. Instead, the trial court placed the insurer “in the untenable position of defending against [the insured]’s unnoticed, ore tenus motion to compel an appraisal that, in essence, was a thinly veiled, dispositive motion on the merits of their complaint.”

Because this action by the trial court did not comport with due process, the Third District reversed.