TIMOTHY S. BRUMLIK, APPELLANT,
v.
CATALYST INC., APPELLEE
ORFINGER, Judge.
Appellee moves to dismiss this appeal, contending that the notice of appeal was filed more than 30 days from rendition of the final judgment.
Appellant filed a timely motion for rehearing of the final judgment entered after a non-jury trial, but before that motion was disposed of, filed his notice of appeal. The notice of appeal was filed more than thirty days from the filing of the final judgment.
Appellee contends that this court has no jurisdiction because the filing of the notice of appeal constituted an abandonment of the undisposed of motion for rehearing; thus, says appellee, the appeal was filed more than thirty days after rendition of the final judgment.
For the reasons expressed in Bianco v. Bianco, 383 So. 2d 1120, 1121 (Fla. 4th DCA 1980) we deny the motion to dismiss. While we agree that the filing of a notice of appeal prior to the determination of an otherwise timely filed motion for rehearing constitutes an abandonment of the motion for rehearing, we cannot agree with appellee that the tolling effect of the motion is also abandoned. We hold that pursuant to Rule 9.020(g), Fla.R.App.P. because the filing of an authorized and timely motion for rehearing delays rendition of the final judgment until the motion is disposed of, the abandonment of the motion by the filing of the notice of appeal constitutes a “disposition.” See also, Winn Dixie Stores, Inc. v. Codomo, 372 So. 2d 952 (Fla. 3d DCA 1979). Contra, Bannister v. Hart, 144 So. 2d 853 (Fla. 2d DCA 1962).
MOTION DENIED.
FRANK D. UPCHURCH, JR. and SHARP, JJ., concur.
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In re Forfeiture OF $104 v. Metro Dade Police Dep't, 578 So. 2d 727 (Fla. 3d DCA 1991)…2d 477 (Fla. 3d DCA 1986); SAC Constr. Co., Inc. v. Eagle Nat’l Bank of Miami, 449 So. 2d 301 (Fla. 3d DCA 1984); In re One Chevrolet Blazer, 436 So. 2d at 1088; accord Jackson v. State, 570 So. 2d 1038 (Fla. 2d DCA 1990); Brumlik v. Catalyst, Inc., 463 So. 2d 240 (Fla. 5th DCA 1984); Griffith v. State, 435 So. 2d 398 (Fla. 2d DCA 1983); see also The Florida Star v. B.J.F., 499 So. 2d 883 (Fla. 1st DCA 1986), review denied, 509 So. 2d 1117 (Fla.1987), reversed on other grounds, 491 U.S. 524, 109 S.Ct. 2603, 1…
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Toiberman v. Tisera, 998 So. 2d 4 (Fla. 3d DCA 2008)…y determination of this motion for rehearing prior to filing this notice of appeal. As a result, the grounds raised in this motion are deemed to have been abandoned on appeal. See State v. Pearson, 156 So. 2d 4 (Fla.1963); Brumlik v. Catalyst, Inc., 463 So. 2d 240 (Fla. 5th DCA 1984); SAC Constr. Co. v. Eagle Nat’l Bank of Miami, 449 So. 2d 301 (Fla. 3d DCA 1984). Secondly, even if his motion for rehearing had been entertained by the trial court, his factual and legal challenges to the arbitrator’s award in t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)
- Winn-Dixie Stores, Inc. v. Codomo, 372 So. 2d 952 (Fla. 3d DCA 1979)
- Bianco v. Adrianne Bianco, 383 So. 2d 1120 (Fla. 4th DCA 1980)