PHILIP GENE GRABARNICK, ET AL., PETITIONERS,
v.
FLORIDA HOMEOWNERS ASSOCIATION OF NORTH BROWARD, INC., ET AL., RESPONDENTS
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The appellate court reviewed a trial court's dismissal of a complaint and denial of attorney's fees in a dispute between a condominium developer, one homeowners association, and another homeowners association regarding an ingress and egress easement.
The court found that the trial court erred in denying attorney's fees to the Sweetwater I association, but also found merit in the cross-appeal regarding the ingress and egress easement.
[1] A motion for rehearing must be served within the time prescribed by rule, and the time for filing a motion for rehearing runs from the date the judgment is entered, not f…
[2] The time for filing a motion for rehearing is not extended by the three-day rule for service by mail under Fla.R.Civ.P. …
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Join FLexlaw to unlock all legal intelligenceCreative Concepts, the developer of two adjacent condominiums (Sweetwater I and II), constructed a road between them. The Sweetwater I association int…
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ADKINS, Justice.
The Fourth District Court of Appeal (Grabarnick v. Florida Homeowners Ass’n, 395 So. 2d 1184 (Fla. 4th DCA 1981)), has certified a question to this Court as of great public importance. Jurisdiction is pursuant to article Y, section 3(b)(4), Florida Constitution.
The facts giving rise to the certified question are as follows: The judgment in the instant case was entered by the court on May 30, 1980 and was filed in the clerk’s office on that date. The final judgment was mailed by the clerk to parties on Monday, June 2, 1980. Petitioners served their motion for rehearing on June 10, 1980, 11 days after the court entered its judgment and the judgment was filed with the clerk. There is no indication in the Court file as to when the judgment was recorded by the clerk.
The question as phrased by the petitioners and certified by the district court is:
Must Fla.R.Civ.P. 1.080(h), 1.090(e) and 1.530(b) be read together so as to provide that a motion for rehearing of a final judgment of a circuit court which is served 11 days after rendition and six days after receipt of the final judgment, is timely served so as to toll the time period for the filing of a notice of appeal of the final judgment?
After a careful examination of these rules, we answer the certified question in the negative. Rule 1.090(e) does not deal with the same subject matter as do the other two rules. Rule 1.090(e) concerns the right or requirement “to do some act or [to] take some proceeding within a prescribed period after the service of a notice or other paper ... and the notice or paper is served ... by mail....” (Emphasis added.) The time for filing a petition for rehearing under rule 1.530 begins to run from the date the judgment is entered and not the date a party has been served with a pleading or other paper, as provided by rule 1.090(e).
Petitioners argue that because a final judgment is served upon the parties by mail, and because a corresponding motion for rehearing is also served by mail, that the party serving the motion for rehearing has an additional three days in which to do so pursuant to rule 1.090(e). We do not read the rule to extend by three days the time within which to serve a motion for rehearing. (By subsequent rule it is now five days).
We turn now to the issue of the meaning of the term “entry of judgment” in Fla.R.Civ.P. 1.530(b). In July of 1981 this Court decided the case of Casto v. Casto, 404 So. 2d 1046, 1048 (Fla.1981). We stated in Casto that “... ‘entry of judgment’ under Florida Rule of Civil Procedure 1.530(b) means the recording of the judgment — the spreading of the judgment upon the court’s official records.” (Citations omitted.) Prior to this decision there was some legitimate question about whether the term “entry of judgment” as used in rule 1.530(b) referred to the date the judgment was (1) entered by the court; (2) filed with the clerk of the court; or (3) recorded by the clerk of the court. Casto makes clear that the date of recording is the date from which the time to move for a rehearing should begin to run. Casto was decided after the district court’s decision in Grabar-nick.
We quash the decision of the district court dismissing the appeal as untimely and remand the cause for further consideration in accordance with the views expressed in Casto and this opinion.
It is so ordered.
BOYD, OVERTON and SUNDBERG, JJ, concur. McDONALD, J., dissents with an opinion, with which ALDERMAN, C. J., concurs.
McDONALD, Justice,
dissenting.
I dissent. We made a mistake in Casto v. Casto, 404 So. 2d 1046 (Fla.1981), and this case gives us a vehicle to correct that error. The time for filing a petition for rehearing should commence to run when the judgment sought to be reheard is filed with the clerk of the court. The Third District Court of Appeal correctly dealt with this issue in Dibble v. Dibble, 377 So. 2d 1001 (Fla.3d DCA 1979). We should adopt that opinion and dispose of this case accordingly.
ALDERMAN, C. J., concurs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)…a way as to render otherwise untimely notices of appeal timely, see Southern Atlantic Construction Co. v. First Corporation of DeSoto County, 419 So. 2d 729 (Fla. 4th DCA 1982) and Grabarnick v. Florida Homeowners Association of North Broward, Inc., 419 So. 2d 1065 (Fla.1982), that rule has also prompted criticism by Justices McDonald and Alderman, who have suggested that the Casto decision was a “mistake”. Gabarnick, 419 So. 2d at 1067 (McDonald, J. and Alderman, C.J., dissenting). The fact that confusion and…
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Dominguez v. Barakat, 609 So. 2d 664 (Fla. 3d DCA 1992)….. service ... and the notice or [*665] paper is served supplied] Fla.R.Civ.P. 1.090(e). In contrast, the ten-day service requirement of Fla.R.Civ.P. 1.530(b) runs from “the filing of the judgment.” [e.s.] See Grabarnick v. Florida Homeowners Ass’n, 419 So. 2d 1065 (Fla.1982);1 D’Best Laundromat, Inc. v. Janis, 508 So. 2d 1325 (Fla. 3d DCA 1987); Wilson v. Clark, 414 So. 2d 526 (Fla. 1st DCA 1982); see also Shields v. Colonial Penn Ins. Co., 513 So. 2d 1363 (Fla. 5th DCA 1987); Bouchard v. State Dep’t of Busi…
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Rosenberg v. Judith Rosenberg (Stein), 452 So. 2d 620 (Fla. 3d DCA 1984)…uired under the property settlement agreement.1 The 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…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Casto v. Casto, 404 So. 2d 1046 (Fla. 1981)
- Dibble v. Dibble, 377 So. 2d 1001 (Fla. 3d DCA 1979)
- Grabarnick v. Fla. Homeowners Ass'n OF N. Broward, Inc., 395 So. 2d 1184 (Fla. 4th DCA 1981)