INAKY MARKEVITCH AND SERENA MARKEVITCH, APPELLANTS,
v.
FRANCES VAN HARREN, APPELLEE
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The Florida District Court of Appeal affirmed its dismissal of an appeal due to untimely filing of the notice of appeal. The court held that the trial court lost jurisdiction when it denied the first motion for rehearing on November 22, 1982, and the appellants' notice of appeal filed on March 3, 1983 was not filed within the required thirty-day period from that date.
The court held that the trial court lost jurisdiction of the cause on November 22, 1982, when it entered its order denying the plaintiffs' motion for rehearing, and only a timely appeal from that order would vest jurisdiction in the appellate court. The notice of appeal filed on March 3, 1983 was not timely because it was not filed within thirty days of November 22, 1982.
[1] A trial court loses jurisdiction of a cause when it enters an order denying a motion for rehearing.
[2] A timely appeal from an order denying a motion for rehearing is necessary to vest jurisdiction in an appellate court.
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Join FLexlaw to unlock all legal intelligence“It is obvious to us that the trial court lost jurisdiction of this cause on November 22, 1982, when it entered its order denying plaintiffs' motion for rehearing”
Establishes the critical date when trial court jurisdiction was exhausted and the thirty-day appeal period began to run.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered final judgment against the plaintiffs-appellants on November 1, 1982. Appellants filed a timely motion for rehearing on Novemb…
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PER CURIAM.
We granted the appellants’ motion for rehearing to reconsider our earlier dismissal of their appeal. Upon reconsideration, we conclude that the notice of appeal was not timely filed and adhere to our ruling dismissing the appeal.
The facts are these. The trial court entered final judgment against the plaintiffs-appellants on November 1, 1982. On November 15, 1982, they filed a timely motion for rehearing. On November 19, 1982, the appellants, through new counsel, filed a second motion for rehearing. Three days later, on November 22, 1982, the trial court entered an “Order Denying Plaintiffs’ Motion for Rehearing.” On December 15, 1982, the trial court entered an order granting the appellants’ motion for rehearing and set the cause to be reheard in January 1983. On February 1, 1983, the trial court entered its second order denying rehearing. On March-3,1983, within thirty days of this last order, the appellants filed their notice of appeal.
It is obvious to us that the trial court lost jurisdiction of this cause on November 22, 1982, when it entered its order denying plaintiffs’ motion for rehearing, Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1 (Fla.1970); Kippy Corp. v. Colburn, 177 So. 2d 193 (Fla.1965), and only a timely appeal from that order would vest jurisdiction in this court. Assuming, as the appellants argue, that their second motion for rehearing merely amended the first and was a permissible pleading, see Fla.R.Civ.P. 1.530(b) (“A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined”); Adkins v. Burdeshaw, 220 So. 2d 39 (Fla. 1st DCA 1969), then the contentions contained therein, along with the contentions made in the initial motion for rehearing, were ruled upon when the trial court denied rehearing on November 22, 1982. Assuming, on the other hand, that the second motion for rehearing was not an amendment to the first, but had a life of its own [a highly questionable proposition in light of there being no, provision authorizing more than one motion for rehearing from a final judgment, Fla.R.Civ.P. 1.530; see Volumes In Value, Inc., v. Buy Mail International, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965); see also State v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978); Reilly v. Hyster, 307 So. 2d 202 (Fla. 4th DCA 1975)], then it clearly was untimely as being filed more than ten days after the final judgment, Fla.R.Civ.P. 1.530(b).
Thus, no matter what view is taken of the appellants’ November 19, 1982, motion for rehearing, either the trial court’s jurisdiction was exhausted when it denied rehearing or the trial court’s jurisdiction was never invoked by the untimely motion. Either way, a notice of appeal was required to be filed within thirty days of November 22. That not having been done, the appeal must stand dismissed.
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Cap. Bank v. The Honorable Francis X. Knuck, 537 So. 2d 697 (Fla. 3d DCA 1989)…ecause, notwithstanding that the order undertook to do so, the trial court has no authority either to permit the filing of any further motion for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530, Markevitch v. Van Harren, 429 So. 2d 1255 (Fla. 3d DCA 1983), appeal after remand, 447 So. 2d 332 (Fla. 3d DCA 1984), pet. for review denied, 456 So. 2d 1182 (Fla.1984), or to extend the time for filing that motion, Clara P. Diamond, Inc. v. Tam-Bay Realty, Inc., 462 So. 2d 1168 (Fla. 2d DC…
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State of Fla. ex rel. Eduardo Cantera v. Dist. Court OF Appeal, 555 So. 2d 360 (Fla. 1990)…al court’s jurisdiction over the cause.... In sum, the lower court could do nothing after the appropriate disposition of the single authorized post-trial motion. Id. at 698 (footnotes omitted; citations omitted). See also Markevitch v. Van Harren, 429 So. 2d 1255 (Fla. 3d DCA 1983). The bank seeks to justify the order vacating the denial of the motion for rehearing as an order entered pursuant to Florida Rule of Civil Procedure 1.540(a) which reads: (a) Clerical Mistakes. Clerical mistakes in judgments, de…
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Small v. State, 574 So. 2d 1119 (Fla. 2d DCA 1990)…sideration was filed too late to consider as a timely motion to stay the appeal time, see Mays v. State, 345 So. 2d 356 (Fla. 4th DCA 1977). Also, appellant is limited to one rehearing motion to stay the time for appeal. See Machevitch v. VanHarren, 429 So. 2d 1255 (Fla. 3rd DCA 1983).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Kippy Corp. v. Sherwood Colburn, 177 So. 2d 193 (Fla. 1965)
- Shelby Mut. Ins. Co. OF Shelby v. Tillman Pearson, 236 So. 2d 1 (Fla. 1970)
- Volumes IN Value, Inc. v. BUY Mail Int'l, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965)
- State v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978)
- Tullie O. Adkins v. Burdeshaw, 220 So. 2d 39 (Fla. 1st DCA 1969)
- Reilly v. Hyster Co., 307 So. 2d 202 (Fla. 4th DCA 1975)