MARTIN H. COLIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANGELA KAE LOTTES, DECEASED, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION AND DAVID HUNTER SMITH, APPELLEES
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Appeal dismissed as untimely because plaintiff's petition for rehearing on a non-final venue order did not toll the thirty-day appeal period, and the notice of appeal was filed beyond that deadline.
A petition for rehearing on a non-final venue dismissal order does not toll the thirty-day period for filing a notice of appeal under Florida Rules of Appellate Procedure.
[1] A petition for rehearing from a non-final venue order does not operate to toll the thirty-day period for filing a notice of interlocutory appeal.
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a complaint that was dismissed on improper venue grounds. Plaintiff then filed a timely petition for rehearing, but subsequently filed…
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HERSEY, Judge.
The instant appeal is brought from an order dismissing plaintiff/appellant’s complaint on the basis of improper venue. The order, on its face, is a non-final order concerning venue and subject to interlocutory appeal pursuant to Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure. Since it is a non-final order, plaintiff’s petition for rehearing, although timely, was not authorized and therefore did not operate to toll the thirty day period for filing a notice of appeal. Fla.R.App.P. 9.020(g) and Fla.R. Civ.P. 1.530. For a conflicting view see Grice v. Board of County Commissioners of Madison County, 400 So. 2d 801 (Fla. 1st DCA 1981).
Plaintiff expresses concern that the dismissal is, in effect, with prejudice because the statute of limitations expired after the original complaint was filed. However, plaintiff’s subsequent complaint filed in Leon County (the proper venue) should be treated as an amended complaint (amended to reflect the correct venue) for application of the statute of limitations. Thus, the date of the second complaint would relate back to that of the original complaint so that the cause of action would not be barred by the statute of limitations. Fla.R. Civ.P. 1.190(c).
Because the notice of appeal was filed more than thirty days after rendition of the order at issue, the appeal is dismissed as being untimely.
BERANEK and DELL, JJ., concur.
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Citator
Cited By
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Gold Coast Hollywood Corp. & Krasne Hollywood, Inc. v. Semer, 613 So. 2d 142 (Fla. 4th DCA 1993)…, while filed within thirty days of the date the court entered an order denying the motion for rehearing, was filed more than thirty days after the July 9th order was rendered, and was therefore untimely. Colin v. State Department of Transportation, 423 So. 2d 1020 (Fla. 4th DCA 1982); City of Riviera Beach v. Clark, 388 So. 2d 1101 (Fla. 4th DCA 1980). Appeal dismissed. POLEN and FARMER, JJ„ and OWEN, WILLIAM C., Jr., Senior Judge, concur.…
Authorities Cited
- Grice v. Bd. OF Cnty. Comm'rs OF Madison Cnty., 400 So. 2d 801 (Fla. 1st DCA 1981)