EDDIE MAUDE GRIFFIN, APPELLANT,
v.
TAUBER-MANON ASSOCIATES, INC., AND ARTHUR MANON, APPELLEES
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Griffin appealed a dismissal order, but filed his notice of appeal more than 30 days after the final dismissal. The court held that a late Rule 1.540(b) motion to set aside did not suspend the finality of the dismissal, but treated the appeal as directed to the separately-appealable order denying that motion, which was timely filed.
A Rule 1.540(b) motion does not suspend the finality of a judgment, so the February 9 notice of appeal was untimely as to the November 21 dismissal. However, because the notice was filed within 30 days of the separately-appealable January 13 order denying the Rule 1.540(b) motion, the court treated the appeal as directed to that order and retained jurisdiction.
[1] A motion filed under Fla.R.Civ.P. …
[2] A notice of appeal filed more than 30 days after a final order of dismissal, and not timely after a motion that suspends finality, will be dismissed for lack of jurisdict…
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Join FLexlaw to unlock all legal intelligence“A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.”
Establishes that Rule 1.540(b) motions do not toll the appeal deadline by suspending finality.
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Join FLexlaw to unlock all legal intelligenceOn November 21, 1983, the trial court rendered a final order of dismissal against plaintiff Griffin. On December 9, 1983, beyond the 10-day rehearing …
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SCHWARTZ, Chief Judge.
On Motion to Dismiss
On November 21, 1983, a final order of dismissal was rendered against the plaintiff-appellant in the trial court. On December 9, beyond the ten day rehearing time provided by Fla.R.Civ.P. 1.530, the plaintiff served a Motion to Set Aside the Order of Dismissal under Fla.R.Civ.P. 1.540(b) on the ground that counsel had not received timely notice of the application for the order or its entry. After hearing, that motion was denied on January 13, 1984, and the plaintiff filed a notice of appeal, purportedly directed to the final order of dismissal, on February 9, 1984.
Upon consideration of the appellees’ present motion to dismiss the appeal, we hold, as Fla.R.Civ.P. 1.540(b) expressly provides,1 that 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 1.540(b), see Fla.R.App.P. 9.130(a)(5), there is no reason why the notice should not be treated as one which seeks review of that order and we will consequently so consider this appeal. Puga v. Suave Shoe Corp., 417 So. 2d 678 (Fla. 3d DCA 1982) (en banc).3 On that basis alone, the motion to dismiss is denied.
. "A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.”
. The appellees’ reliance on Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980) is misplaced. In that case, the motion designated as one to set aside a final order was in fact filed within ten days so that it could be, as it was, treated as a timely-filed motion for rehearing with the consequent effect of tolling the time for appeal.
.It may be noted, notwithstanding that Puga does not require that this be the case, that the notice does make specific reference to the January 13 order, although erroneously designating it as one which finalized the November order of dismissal.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…on to set aside order,” filed within 10 days after entry of a final order, will be treated as a timely motion for rehearing under Rule 1.530. Meyerson v. Texsol, Inc., 385 So. 2d 5, 6 (Fla. 3d DCA 1980); see Griffin v. Tauber-Manon Associates, Inc., 452 So. 2d 577, 578 n. 2 (Fla. 3d DCA 1984); see also Salam v. Benmelech, 622 So. 2d 592, 593 (Fla. 3d DCA 1993) (motion for modification of final judgment is properly viewed as a motion to alter or amend judgment trader Rule 1.530(g)). If the Bank’s motion to vac…
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SUN Bank & Tr. Co. v. Jones, 645 So. 2d 1008 (Fla. 5th DCA 1994)…aring, even if the February order is deemed to be final. See Williams v. Williams, 560 So. 2d 308, 310 (Fla. 1st DCA 1990); Nardi v. Continental National Bank, 559 So. 2d 307, 308-09 n. 3 (Fla. 3d DCA 1990); Griffin v. Tauber-Manon Associates, Inc., 452 So. 2d 577, 578 n. 2 (Fla. 3d DCA 1984). Thus, in any event, Sun Bank’s objections tolled the time for filing its notice of appeal until the trial court ruled on the objections. In re Estate of Zimbrick, 453 So. 2d 1155, 1157-59 (Fla. 4th DCA 1984). See also I…
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Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 467 So. 2d 746 (Fla. 3d DCA 1985)…cordingly, the affirmance of the judgment now under review is specifically without prejudice to appropriate disposition2 after remand of the plaintiffs’ alleged right to relief under Fla.R.Civ.P. 1.540.3 See Griffin v. Tauber-Manon Associates, Inc., 452 So. 2d 577 (Fla. 3d DCA 1984). Affirmed, remanded. . The order of May 5 dismissed the complaint "with prejudice;" that of May 9 did not contain these words. As Gries, infra, holds, however, the difference is irrelevant to the finality of the order. . We exp…
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
- Robustiano Puga & Medmold, Inc. v. Suave Shoe Corp., 417 So. 2d 678 (Fla. 3d DCA 1981)
- Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980)
- Sol W. Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980)