NON-DISPOSITIVE OPINION NO MANDATE WILL BE ISSUED AT THIS
from the Circuit Court for Orange County, Bob Leblanc, Judge.
A. Nation and Paul W. Pritchard, of The Nation Law Firm,
Longwood, for Appellant.
P. Rock and Julia G. Young, of The Rock Law Group, P.A.,
Maitland, for Appellee.
W. Altenbernd, of Banker Lopez Gassler P.A., Tampa, for
MOTION FOR REHEARING AND CERTIFICATION
Integrity Insurance Company of Florida ("AIIC") has
filed a motion for rehearing and certification. AIIC has also
filed a motion for rehearing en banc, which will be the
subject of a separate order by this court. In his Response to
these motions, Hugh Hicks contends, among other things, that
AIIC improperly reargues the issue decided by this court.
Hicks further contends that AIIC's arguments regarding
the per curiam affirmed decision without written opinion in
Zimmerman v. American Integrity Insurance, 212 So.3d
376 (Fla. 5th DCA 2015) (table decision), are improper.
is correct that the motion for rehearing reargues the issue
already decided by this court. It has been a fundamental rule
for quite some time that such argument is prohibited. As we
explained in Boardwalk at Daytona Development, LLC v.
Appellees' "motion does what [Florida Rule of
Appellate Procedure] 9.330(a) proscribes; it re-argues the
merits of the case." Lawyers Title Ins. Corp. v.
Reitzes, 631 So.2d 1100, 1100 (Fla. 4th DCA 1993)
(citations omitted). "It appears that counsel are
utilizing the motion for rehearing and/or clarification as a
last resort to persuade this court to change its mind or to
express their displeasure with this court's
conclusion." Id at 1101. "This is not the
purpose of [r]ule 9.330. It should be noted that the filing
of [r]ule 9.330 motions should be done under very limited
circumstances, it is the exception to the norm."
Id (footnote omitted). "Motions for rehearing
are strictly limited to calling an appellate court's
attention-without argument-to something the court has
overlooked or misapprehended. The motion for rehearing is not
a vehicle for counsel or the party to continue its attempts
at advocacy.'" Cleveland v. State, 887
So.2d 362, 364 (Fla. 5th DCA 2004) (quoting Goter v.
Brown, 682 So.2d 155, 158 (Fla. 4th DCA 1996)).
212 So.3d 1063, 1063 (Fla. 5th DCA 2017).
to the Zimmerman decision, AIIC makes it a feature
of its motion for rehearing en banc. AIIC filed an appendix
containing the briefs filed in Zimmerman in an
attempt to support its argument that this court affirmed the
same coverage issue and "seemingly reached the opposite
conclusion" in a case with a similar fact pattern. Those
briefs clearly reveal that Hicks is correct-not only does
Zimmerman have no precedential value for the purpose
of granting a motion for rehearing en banc, the arguments
made by AIIC regarding that decision are improper.
opinion rendered in the current appeal, the issue we resolved
is whether the policy exclusion applies to exclude coverage
for loss that occurs during the first thirteen days of water
seepage or leakage. For the reasons explained in the opinion,
we held that the exclusion does not apply to that time
period. The briefs in the Zimmerman appeal reveal
that, while the insured attempted to raise this issue in that
case, AIIC argued that the issue was waived and not
reviewable. AIIC does not mention this fact in its
motion. Yet AIIC improperly cites to Zimmerman in
its motion to argue that this court seemingly reached the
opposite decision regarding the same coverage issue.
motion exemplifies the wisdom of the rule that such per
curiam affirmed decisions without a written opinion have no
precedential value and should only be relied upon to
establish res judicata. Dep't of Legal Affairs v.
Dist. Ct. of Appeal, 5th Dist.,434 So.2d 310, 313 (Fla.
1983) ("We reiterate that such a decision is not a
precedent for a principle of law and should not be relied
upon for anything other than res judicata.");
Munnerlyn v. Wingster, 825 So.2d 481, 483 (Fla. 5th
DCA 2002) (holding that a party's reliance on a per
curiam affirmance with a dissenting opinion even from its own
court was "misplaced, " since a dissenting opinion
has no precedential value); Robinson v. State, Dep't
of HRS ex rel. Robinson, 473 So.2d 228, 229 n.1 (Fla.
5th DCA 1985) ("We do not need to distinguish
Thompson v. Lancaster, 458 So.2d 442 (Fla. 5th DCA
1984), a per curiam affirmance without opinion. It is not
precedential authority, because the reasons for the
affirmance cannot be determined."); St. Fort ex rel.
St. Fort v. Post, Buckley, Schuh & Jernigan, 902
So.2d 244, 248 (Fla. 4th DCA 2005); State v. Swartz,
734 So.2d 448, ...