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108471

IN THE DISTRICT COURT OF APPEAL IN AND FOR THE STATE OF FLORIDA - FIFTH DISTRICT

WILLIAM J. WROE,

CASE NO.: 5008-245

(Lower Court) No.: 05-CA-5958

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Appellant,

Appellee.

vs.

AMICA MUTUAL INSURANCE COMPANY,

APPELLANT'S RESPONSE TO ORDERTO SHOW CAUSE

The Appellant, William J. Wroe C'Wroe"), hereby responds to this Court's Order

to Show Cause as to why the appeal should not be dismissed for lack of jurisdiction, and

in response the Appellant states:

1. The Order upon which the Wroe's appeal is based was drafted by Amica

Mutual Insurance Company's ("Amica/~ attorney without consultation with Wroe's

counsel and without the trial judge requesting an Order be submitted by the parties. As

a result of the one-sided drafting, paragraph 5 states that a final judgment may be later

forthcoming if Amica did not pay pursuant to the Order within 30 days.

- 2;-- Wroe has attached as Appendix "A" a copy of a check provided by Arnica

through its attorney to Wroe's attorney dated October 1, 2007, in the amount of

$8,011.74. This check was provided to Wroe's counsel almost two and half months

before Arnica's attorney sua sponte submitted the order to the Court. As a result, Arnica

had already complied with the Court's order two months before the Order was actually

entered.

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3. Amica's check satisfied the Court's Order and Amica's payment made the

Court's Order into a Final Order for which there was no further judicial effort required.

4. In State v. Saufley, 574 So. 2d 1207 (Fla. 5th DCA 1991), Justice Cowart,

discussed what would make an order final. Justice Cowart cited to SLP Warehouse

Company v. Webb, 304 So. 2d 97, 99 (Fla. 1974), wherein he stated:

With exceptions not relevant here, the Florida Supreme Court has consistently held that: The test employed by the appellate court to determine finality of an order, judgment or decree is whether the ordering questions constitutes an end to the judicial labor in the cause, and nothing further needs to be done by court to effectuate a termination of the cause as between the parties directly affected. (Emphasis added.)

Id. at 1210-11.

5. In this case, Arnlca's tender of payment of the amount it wanted to pay

and the amount that was included in the Order ended the trial court's involvement in the

cause and there was nothing left for the trial court to decide. The trial court's Order

stated that as a matter of law the most Wroe would be able to recover would have been

the $8,011.74 previously tendered by Arnica. As a result, the Order entered by the trial

court on December 17, 2007, had the effect of being final as the Order did not even

allow a final judgment to be entered if Arnica made payment to Wroe within thirty days.

WHEREFORE, the Appellant, William J. Wroe, respectfully requests that this

Court find that the Order entered by the trial court on December 17, 2007, is a final

order from which an appeal may be taken. Wnder the terms of the Order Wroe is not

entitled to any further relief and is not entitled to obtain a final judgment based on the

Amica's prior tender of payment.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

served by facsimile and by first-class mail, postage prepaid, to: Jamie B. Moses, Esquire,

Fisher, Rushmer, Werrenrath, Dickson, Tally & Dunlap, P.A., P.O. Box 712, Orlando, FL

32802 and Patrick H. Willis, Esquire, Fisher, Rushmer, Werrenrath, Dickson, Talley &

Dunlap, P.A., P.O. Box 712, Orlando, FL 32802 on this the , ...... 1_···· _~ day of

February/ 2008.

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HANS KENNON, ESQUIRE Florida Bar No. 0059323 Morgan & Morgan, P.A.

20 N. Orange Avenue.TO" Floor Orlando, Florida 32801 Telephone: (407) 420-1414 Facsimile: (407) 423-7928 Attorneys for Plaintiff

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APPENDIX "A"

AMI

MUTUAL INSURANCE Co

ANY

MAIL: P.O. BOX 6008 PROVIDENCE, R.I. 02940·6008 ORLANDO REGIONAL OFFICE

TOLL FREE 1·BOO-66-AMICA

CHECK NUMBER:

CHECK AMOUNT:

2037777 $8,011.74

FILE NO: L34200404601 POLICY NO: 950109·25QW

COLLISION COVERAGE

CLAIM HANDLER: SUSAN H. SIEFERT

RE:

THE ATTACHED CHECK IS IN PAYMENT OF THE ITEMS LISTED ABOVE.

PLEASE DETACH BEFORE DEPOSITING

AUTO HOME LiFE

AMICA MUTUAL INSURANCE COMPANY

CORPORATE OFFICE. LINCOLN, RHODE ISLAND

53·7524/113 SOVEREIGN BANK

CLAIMS ACCOUNT

OCTOBER 1, 2007

2037777

FOR A LOSS ON 10{22{2004 OR FOR SERVICES RENDERED UNDER POLICY NO. 950109·25QW

CLAIM FILE NUMBER L34200404601

INSURED WILLIAM WROE

PAY

*8,011*DOLLARS AND 74 CENTS

$8, all. 74

TO THE ORDER OF

MORGAN & MORGAN AND CLIENT WILLIAM WROE

. TREASURER

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