EDWIN F. GORDON, APPELLANT,
v.
E. G. GREEN ET AL., APPELLEES
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Gordon appeals the trial court's dismissal of counts in his complaint, but the notice of appeal was filed outside the statutory deadline due to a service failure by opposing counsel. The court addresses whether the trial court could extend the appeal deadline and whether alternative remedies exist.
The trial court lacks authority to extend the deadline for filing a notice of appeal, as established by Florida Supreme Court precedent. However, the trial court may have authority to vacate the dismissal order pursuant to Rule 1.540(a) or 1.540(b) of the Florida Rules of Civil Procedure, which could effectively extend the time to appeal.
[1] A trial court abuses its discretion when it refuses to vacate and re-enter a final order to permit a party to appeal when that party demonstrates they did not receive a c…
[2] Rule 1.080(h)(1) requires that conformed copies of all orders must be mailed to the parties.
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Join FLexlaw to unlock all legal intelligence“We are bound by the decisions of the Florida Supreme Court holding that the trial court cannot extend the time to file the notice of appeal, as was attempted in this case.”
Establishes the fundamental jurisdictional rule that trial courts lack authority to extend appeal deadlines.
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Join FLexlaw to unlock all legal intelligenceThe trial court dismissed Counts I, II, and III on November 9, 1977. The court granted motions for rehearing and entered an order on June 6, 1978, whi…
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SHARP, Judge.
The notice of appeal was filed in this case on August 22, 1978. Appellant seeks review of the trial court’s order dismissing Counts I, II and III dated November 9, 1977. Motions for rehearing were made and denied by an order rendered June 6, 1978. The court mailed a conformed copy of the order on June 6, 1978, to one of the defendant’s attorneys, William Gillen, and he was directed to serve copies on the other parties. He filed a certificate of service with the court records stamped “June 9,” indicating that a copy of the order was mailed to the attorneys for all parties “this _day of June, 1978.” Apparently, neither of the two attorneys for the plaintiff received a copy of the order, but learned of its entry on July 26, 1978 when one of them checked the court file. The plaintiff then filed a motion for extension of time for filing notice of appeal, which was agreed to by all of the parties. Based on this agreement, the trial court entered an order extending the time for plaintiff to file his appeal through August 25, 1978.
We are bound by the decisions of the Florida Supreme Court holding that the trial court cannot extend the time to file the notice of appeal, as was attempted in this case. Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla.1960); Salinger v. Salinger, 100 So. 2d 393 (Fla.1958); Lalow v. Codorno, 88 So. 2d 752 (Fla.1956); Bonura v. Holloway, 334 So. 2d 842 (Fla. 4th DCA 1976); In the Interest of D.L.M. and D.M., Children, 320 So. 2d 830 (Fla. 4th DCA 1975).
However under the circumstances in this case, the time for filing the appeal could possibly have been extended by asking the trial court to vacate the order pursuant to Rule 1.540(a) or 1.540(b) of the Florida Rules of Civil Procedure. Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla.1979); Smith v. Garst, 289 So. 2d 774 (Fla. 2d DCA 1974); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971). We do not relish the triumph of form over substance. We therefore relinquish jurisdiction and remand this case to the trial court for a determination of whether motions to vacate the order pursuant to Rule 1.540(a) or 1.540(b) should be granted. Compare Fla.R.App.P. 9.040(c).
REMANDED.
ORFINGER, J., concurs.
CROSS, J., dissents with opinion.
CROSS, Judge,
dissenting.
I respectfully dissent.
I would dismiss the appeal as being untimely filed.
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Spanish Oaks Condo. Ass'n, Inc. v. Compson OF Fla., Inc., 453 So. 2d 838 (Fla. 4th DCA 1984)…WALDEN, Judge, concurring specially. I would reverse and remand upon authority of Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971); Gibson v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980); and Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980). BY ORDER OF THE COURT: The order on attorney’s fees of June 13, 1984, is vacated. We grant appellee’s motion for clarification as to the award of attorney’s fees and conclude: 1. The fees incurred in this appeal shall be tre…
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Griffin v. Tauber-Manon Assocs., Inc., 452 So. 2d 577 (Fla. 3d DCA 1984)…at the December 9 motion did not suspend the finality of the November 21, 1983 dismissal with the result that, since the notice of appeal was filed more than 30 days thereafter, this court lacks jurisdiction to review it. Insofar as Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980) indicates otherwise, our decision is simply at odds with that one.2 Since the notice of appeal was, however, filed within thirty days of the separately-appealable January 13, 1984 order denying the motion for relief under Rule 1…
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Hayman v. State, 634 So. 2d 1097 (Fla. 2d DCA 1994)…n could not be invoked because the thirty-day period for appeal had elapsed. The trial court had no power to extend the time prescribed for the filing of the notice of appeal. Salinger v. [*1099] Salinger, 100 So. 2d 393 (Fla.1958); Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980). This proceeding is dismissed. PARKER, A.C.J., and LAZZARA, J., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla. 1960)
- Town OF Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- Rolf Peter Salinger v. Salinger, 100 So. 2d 393 (Fla. 1958)
- Bonura v. Holloway, 334 So. 2d 842 (Fla. 4th DCA 1976)
- Lalow v. Codomo, 88 So. 2d 752 (Fla. 1956)
- Hazen v. State, 289 So. 2d 774 (Fla. 1st DCA 1973)
- In the Interest of D. L. M., 320 So. 2d 830 (Fla. 4th DCA 1975)