LOIS FEINBERG, APPELLANT,
v.
ARTHUR I. FEINBERG, APPELLEE

Fla. 4th DCA | 1980-06-04
No. 80-298
ANSTEAD and HERSEY, JJ., concur.
384 So. 2d 1304 Florida District Court of Appeal, Fourth District (1980) Caution
Cited by 8 cases

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Synopsis

In a divorce appeal, the Florida Fourth District Court of Appeal dismissed the wife's appeal as untimely because the trial court lacked authority under Rule of Civil Procedure 1.090(b) to extend the time for filing a motion for new trial. The court held that the clear language of the rule prohibits extensions of time for motions for new trial, and the untimely notice of appeal could not be salvaged by an invalid enlargement order.


Holding

The trial court lacked authority to extend the time for filing a motion for new trial. Rule 1.090(b) explicitly prohibits extensions of time for motions for new trial, and thus the notice of appeal filed on February 12, 1980, was untimely as it was not filed within 30 days of the November 15, 1979 final judgment.


Headnotes

[1] A trial court cannot extend the time for filing a motion for new trial, motion for rehearing, or motion to alter or amend a judgment.

[2] A trial court cannot extend the time for taking an appeal.

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Key Quotes

“it may not extend the time for making a motion for new trial, motion for rehearing or motion to alter or amend a judgment or a motion for relief from a judgment under Rule 1.540(b) or for taking an appeal or filing petition for certiorari or for making a motion for a directed verdict”

The operative language of Rule 1.090(b) that explicitly prohibits extension of time for motions for new trial, which is the core holding of the case.

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Facts & Procedural History

The trial court entered a final judgment dissolving the marriage on November 15, 1979. The wife's counsel filed a motion for enlargement of time to fi…

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Opinion of the Court
BERANEK, Judge.

BERANEK, Judge.

This is an appeal from a final judgment dissolving the marriage between the parties. The wife is the appellant and the husband has moved to dismiss the appeal contending it is not timely.

The final judgment was entered by the trial judge on November 15, 1979. Thereafter, wife’s counsel filed a motion for enlargement of time for filing Motion for New Trial. In this motion it was stated that counsel needed additional time because he had been too busy to prepare the motion for new trial. The motion for enlargement of time did not constitute an actual motion for new trial or for rehearing in any respect. The certificate of service on the motion did not contain a date. On November 27, 1979, the trial court granted the motion for extension of time and, afterward, wife’s counsel filed a motion for new trial which was denied by order of January 21, 1980. Wife’s counsel filed a notice of appeal on February 12, 1980. Appeal now asserts by motion to dismiss that the appeal is untimely because the notice was not filed within 30 days of the final judgment of November 15, 1979. Ap-pellee contends the motion to enlarge time and order granting same was ineffective in view of the provisions of Rule of Civil Procedure 1.090(b). We agree and grant the motion to dismiss the appeal.

Florida Rule of Civil Procedure 1.090(b) provides as follows:

Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, [may] order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect but it may not extend the time for making a motion for new trial, motion for rehearing or motion to alter or amend a judgment or a motion for relief from a judgment under Rule 1.540(b) or for taking an appeal or filing petition for certiorari or for making a motion for a directed verdict. (Emphasis supplied.)

The rule specifically prohibits the trial court from extending the time for the making of a motion for new trial or rehearing. Appellant has suggested no reason why these clear provisions should not be enforced. The purpose of the rule is to promote the finality of a court’s judgment and to bring litigation to a conclusion.

We find that the trial court erred in failing to comply with the rule by granting the motion to extend the time. Although we would prefer to determine all cases on the merits, the rule is clear and requires dismissal.

This is not a situation where a timely motion for new trial has been made and subsequently amended beyond the initial ten-day limitation.1 We conclude that the final judgment was rendered on November 15, 1979, and that the proceedings thereafter did not toll the time for taking an appeal.2 The appeal instituted by notice filed February 12, 1980, is thus dismissed.

APPEAL DISMISSED.

ANSTEAD and HERSEY, JJ., concur. . See Florida Rule of Civil Procedure 1.530(b).

. We do not determine the timeliness of the motion for extension of time nor do we condone the filing of a document in clear violation of the rule requiring a dated certificate of service.


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Citator

Cited By

  • Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So. 2d 1168 (Fla. 2d DCA 1984)
    …sentence. On the other hand, the rule is easily susceptible to the construction that the limitation only applies to subsection (2) because of the absence of a semicolon after the words “excusable neglect.” Our sister court in Feinberg v. Feinberg, 384 So. 2d 1304 (Fla. 4th DCA 1980), had occasion to address this very point. Without considering the ambiguity created by the lack of a semicolon, the court read rule 1.090(b) to specifically prohibit the trial court from extending the time for filing a motion for…
  • Rosenberg v. Judith Rosenberg (Stein), 452 So. 2d 620 (Fla. 3d DCA 1984)
    …e trial court also struck and denied the petition for rehearing. We affirm the striking of the untimely petition for rehearing. See Grabarnick v. Florida Homeowners Association of North Broward, Inc. 419 So. 2d 1065 (Fla.1982); Feinberg v. Feinberg, 384 So. 2d 1304 (Fla. 4th DCA 1980); Rule 1.530(b) Fla.R.Civ.P. We also affirm the denial of the motion to vacate. Schwab & Co., Inc., v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978); Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d…
  • Catsicas v. Catsicas, 669 So. 2d 1126 (Fla. 4th DCA 1996)
    …t bark. A motion for rehearing must “be served not later than 10 days after ... the filing of the judgment in a non-jury action.” Fla.R.Civ.P. 1.530(b). A trial court may not extend the time for making a motion for rehearing. Feinberg v. Feinberg, 384 So. 2d 1304, 1305 (Fla. 4th DCA 1980), review denied, 419 So. 2d 1197 (Fla.1982); Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So. 2d 1168 (Fla. 2d DCA 1984); Fla.R.Civ.P. 1.090(b). Because the March motion for rehearing was untimely, the trial court was…

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