Third District Court of Appeal

State of Florida 

Opinion filed June 28, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1524

Lower Tribunal No. 21-27744

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First Community Insurance Company,

Appellant,

vs.

Kwaku and Beatrice Adjei,

Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, Carlos Lopez, Judge.

Cole, Scott & Kissane, P.A., and Mark D. Tinker (Tampa), for appellant.

Font & Nelson, PLLC, and Jose P. Font and Christopher Herrera (Fort 

Lauderdale), for appellees.

Before SCALES, MILLER, and BOKOR, JJ. 

SCALES, J.
2

In this first-party property insurance case, appellant First Community 

Insurance Company (“First Community”), the defendant below, appeals the 

trial court’s August 5, 2022, nonfinal order compelling an appraisal

(“appraisal order”) between First Community and its insureds, the plaintiffs 

below, appellees Kwaku and Beatrice Adjei (the “Adjeis”).

1 Because the trial 

court violated First Community’s due process rights by considering and 

adjudicating the appraisal issue when no proper motion thereon was pending 

or noticed for hearing, we reverse.

I. RELEVANT BACKGROUND

On December 28, 2021, the Adjeis filed a complaint for declaratory 

relief against First Community in the Miami-Dade County circuit court. While 

not a model of clarity, the Adjeis’ complaint alleges, in relevant part, the 

following:

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 

1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv).
3

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, First Community moved below to dismiss

the Adjeis’ complaint on grounds that the pleading failed to adequately allege 

a valid cause of action and that res judicata barred the lawsuit. First 

Community moved separately to strike the Adjeis’ complaint as a sham 

pleading and to impose sanctions against the Adjeis 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).
4

The only pending motions at the time of the case management 

conference were First Community’s motions to dismiss the complaint, to 

strike the complaint as a sham pleading, and for sanctions. At the case 

management conference, though, over First Community’s objection, the 

Adjeis’ 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 awards the Adjeis the very relief sought in their 

complaint:

2

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 First Community unsuccessfully sought reconsideration of the 

appraisal order, it timely filed the instant appeal.

II. ANALYSIS3

2 The trial court did not adjudicate any of First Community’s pending motions 

at this case management conference.

3 “We review the factual findings in an order compelling appraisal for 

competent, substantial evidence and the application of law to those facts de 

novo.” Heritage Prop. & Cas. Ins. Co. v. Condo. Ass’n of Gateway House 

Apartments Inc., 344 So. 3d 52, 54 (Fla. 3d DCA 2021).
5

“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, 48 Fla. L. Weekly D681, 2023 

WL 2776869, at *2 (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, First Community clearly 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 First Community in the untenable position of defending

against Adjei’s unnoticed, ore tenus motion to compel an appraisal that, in 
6

essence, was a thinly veiled, dispositive motion on the merits of their 

complaint.

4 Because this did not comport with due process, we reverse that 

portion of the appraisal order compelling an appraisal. See Epic Metals 

4 We reject the Adjeis’ argument that because their complaint sought to 

invoke the subject policy’s appraisal provision, the trial court’s order setting 

the August 4, 2022 case management conference put First Community on 

notice that the appraisal issue would be resolved at that hearing. While the 

Adjeis’ entitlement to an appraisal is undoubtedly one of the “issues in the 

case,” we note that no “dispositive motion” on their complaint was pending 

at the time of the case management conference. Further, even if the Adjies

had filed a dispositive motion and properly noticed it for hearing, nothing in 

our record indicates that such a motion would have been ripe for 

adjudication. See People’s Tr. Ins. Co. v. Ortega, 306 So. 3d 280, 284-285

(Fla. 3d DCA 2020) (“The right to an appraisal is created by the insurance 

policy and cannot be triggered unless both parties have complied with their 

contractual obligations. . . . This Court’s precedent makes clear that where 

there is a dispute over whether an insured has sufficiently complied with his 

or her contractual duties so as to trigger the policy’s appraisal provision, that 

dispute must be resolved before compelling the parties to proceed with an 

appraisal of the disputed loss.”); see also Certain Underwriters at Lloyd’s, 

London v. Gables Court Condo. Ass’n, 357 So. 3d 759, 761-62 (Fla. 3d DCA 

2023) (“[T]he trial court improperly relied upon counsel’s representations –

rather than evidence – in resolving disputed issues of fact and in determining 

whether [the insured] complied with its post-loss obligations.”); cf. People’s 

Tr. Ins. Co. v. Marzouka, 320 So. 3d 945, 949 (Fla. 3d DCA 2021) (“Because 

[the complaint’s claims for declaratory relief] . . . target[] the enforceability of 

the appraisal and other policy provisions themselves, the trial court could not 

have granted the motion to compel appraisal as to the breach of contract 

claim without improperly and prematurely adjudicating these issues with 

regard to the declaratory judgment claims.”).
7

Corp., 547 So. 2d at 199; Carrol & Assocs., P.A. v. Galindo, 864 So. 2d 24, 

29 (Fla. 3d DCA 2003) (“To allow a court to rule on a matter without proper 

pleadings and notice is violative of a party’s due process rights.”).

Reversed.