ARVEY BASS AND MARY ANN BASS, APPELLANTS,
v.
LARRY JONES, APPELLEE
Explore caselaw by topic → Browse Motion For Rehearing cases and more on FLexlaw
PER CURIAM.
Appellee moves to dismiss this appeal arguing that the notice was untimely. After the trial court entered an order granting appellee’s motion for summary judgment, but two days prior to entry of the final summary judgment, appellants filed a motion for rehearing. The motion for rehearing was denied some 75 days after entry of the final judgment, and appellants filed their notice of appeal within 30 days of the order denying the motion for rehearing.
Appellee would construe the motion for rehearing as being directed at the interlocutory order granting his motion for summary judgment. As such, the motion would not be an authorized motion under Fla.Civ.P. 1.530 having a tolling effect on the time for filing the notice of appeal. See Tri-State Systems, Inc. v. Seminole County, 302 So. 2d 168 (Fla. 4th DCA 1974). However, we decline to so construe the motion, and construe it instead as one directed at the final summary judgment; albeit prematurely filed. See In re Estate of Zimbrick, 453 So. 2d 1155 (Fla. 4th DCA 1984), in which the court receded from TriState. Where, as here, there is no substantive difference between the rights adjudicated in the interlocutory order and the final judgment, there is no impediment to treating the motion for rehearing as an authorized, premature, motion, tolling the time for filing a notice of appeal. Zimbrick, supra.
Accordingly, the motion to dismiss is denied.
JOANOS, WIGGINTON and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Milford Levine v. Forrest, 578 So. 2d 458 (Fla. 3d DCA 1991)…ospital Corp. of America, 481 So. 2d 1264, 1265 (Fla. 4th DCA 1986); Bay & Gulf Laundry Equipment Co. v. Chateau Tower, Inc., 484 So. 2d 615, 616 (Fla. 2d DCA 1985). With regard to defendant Sawyer, we treat the appeal as timely. See Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987) (on motion to dismiss appeal). On the merits, we conclude that the action should not have been dismissed with respect to defendant Sawyer. Plaintiff alleges an oral agreement with defendants which is partially memorialized by a w…
-
Simpson v. Tarmac Am., LLC, 106 So. 3d 87 (Fla. 3d DCA 2013)…ble order (i.e., an interlocutory order). This Court is authorized to construe the motion for rehearing as directed to the final summary judgment, although prematurely filed. The facts of this case are indistinguishable from those in Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987). In Bass, the First District Court of Appeal found that a motion for rehearing filed after the entry of an order granting summary judgment but before entry of the final summary judgment was one directed to the final summary judgm…
-
Marin v. Obed Limonte, 143 So. 3d 1099 (Fla. 3d DCA 2014)…judgment ... ‘there is no impediment to treating the motion for rehearing as an authorized, premature motion, tolling the time for filing a notice of appeal.’ ” Simpson v. Tarmac Am., LLC, 106 So. 3d 87, 88 (Fla. 3d DCA 2013) (quoting Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987)). Accordingly, the motion to dismiss is denied.…
Authorities Cited
- In re Est. Of Mark Daniel Zimbrick v. Zimbrick, 453 So. 2d 1155 (Fla. 4th DCA 1984)
- Dodge v. Nail, 302 So. 2d 168 (Fla. 4th DCA 1974)