T. CARLTON RICHARDSON, APPELLANT,
v.
DEBORAH WATSON, BOTH INDIVIDUALLY AND AS GUARDIAN FOR THE MINOR, TONY M. WATSON; INEZ WATSON AND ALFRED PYLES, APPELLEES
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Richardson appealed from nonfinal orders granting a motion to compel discovery and denying a motion to vacate a clerk's default. The court dismissed the appeal as untimely, holding that motions for reconsideration of nonfinal orders do not toll the thirty-day deadline for filing a notice of appeal or petition for writ of certiorari.
The appeal was dismissed as untimely. The order granting the motion to compel discovery is reviewable only by certiorari petition, which was not timely filed within 30 days. The order denying the motion to set aside the clerk's default is appealable as a nonfinal order, but the appeal was untimely because motions for reconsideration of nonfinal orders do not toll the thirty-day deadline for filing an appeal.
[1] A motion for reconsideration of a nonfinal order does not toll the time for filing a notice of appeal or petition for a writ.
[2] An order granting a motion to compel discovery is appealable by way of certiorari, and the petition must be filed within 30 days of the order's rendition.
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Join FLexlaw to unlock all legal intelligence“Unlike an authorized and timely motion directed to a final order, a motion for reconsideration or rehearing of a nonfinal order does not toll the time for filing a notice of appeal or petition for a writ.”
Establishes the core holding that motions for reconsideration of nonfinal orders do not extend the deadline for appealing those orders
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Join FLexlaw to unlock all legal intelligenceRichardson was sued by appellees for damages and equitable relief related to his conduct as a trustee. A clerk's default was entered against Richardso…
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PER CURIAM.
The appellees as plaintiffs sued Mr. Richardson for damages and equitable relief directed to his conduct as a trustee. A clerk’s default was entered and thereafter, an order was entered compelling discovery from Mr. Richardson. This appeal arises from the trial court’s nonfinal orders granting the motion to compel production and denying a motion to vacate the clerk’s default. Pursuant to this court’s sua sponte order directing the appellant to show cause why this case should not be dismissed as an untimely appeal and as an appeal from a nonappealable order, we dismiss this appeal. The following chronology sets forth the pertinent orders:1.
November 22, 1991 Clerk’s default
January 23, 1992 Order entered denying defendant’s motion to vacate clerk’s default
January 23, 1992 Order entered granting plaintiff’s motion to compel production of documents
March 5, 1992 Order entered denying defendant’s motions for reconsideration
March 16, 1992 Notice of appeal filed from both nonfinal January 23 orders and nonfinal March 5 order
As can be seen from the chronology, the appellant filed motions for reconsideration of both January 23 orders, which the trial court denied beyond thirty days from the orders. No final default judgment was ever entered.
The issue is whether the nonfinal orders entered on January 23 are appealable and, if so, whether the motions for reconsideration toll the thirty-day jurisdictional period for filing a notice of appeal or petition for a writ. The orders must be addressed separately.
ORDER GRANTING MOTION TO COMPEL DISCOVERY
The order granting the appellees’ motion to compel discovery is appealable, if at all, by way of certiorari. See, e.g., McMillan v. McGill, 584 So. 2d 185 (Fla. 2d DCA 1991); Avatar Properties, Inc. v. Donestevez, 575 So. 2d 785 (Fla. 2d DCA 1991). Absent a situation involving the initial seeking of a wrong remedy by timely filing a notice of appeal in the lower court, the petition for the writ must be filed with this court within 30 days of rendition of the order compelling discovery.2 Fla.R.App.P. 9.100(c). Unlike an authorized and timely motion directed to a final order, a motion for reconsideration or rehearing of a nonfi-nal order does not toll the time for filing a notice of appeal or petition for a writ. See Fla.R.App.P. 9.020(g); Wagner v. Bieley, Wagner & Assocs., Inc., 263 So. 2d 1 (Fla. 1972); Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d DCA 1982); Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 1983). Because the motion for reconsideration did not toll the time for filing a petition for a writ of certiorari, the review of the discovery order is untimely and must be dismissed.
ORDER DENYING MOTION TO SET ASIDE CLERK’S DEFAULT
The order denying the appellant’s motion to set aside the clerk’s default is an appealable nonfinal order. Fla.R.App.P. 9.130(a)(3)(C)(iv); Doctor’s Hosp. of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla. 1982); Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985). The trial court’s order denying the motion for reconsideration of that order, however, is not appeal-able. A motion for rehearing is authorized only after entry of a final order or judgment. Fla.R.App.P. 9.020(g); Wagner; Po-tucek; Weede. Thus, the motion for reconsideration of the order denying the motion to set aside the clerk’s default did not toll the time for filing an appeal from that order. Appeal dismissed.
PARKER, A.C.J., and ALTENBERND and BLUE, JJ., concur. . This court is limited in its review of the record to the appendices provided by the parties, neither of which contains copies of the orders that evidence the filing dates, or copies of the motions for reconsideration.
. This court is aware that a notice of appeal timely filed in the lower court may be properly treated as a petition for writ of certiorari in this court. See Skinner v. Skinner, 561 So. 2d 260 (Fla.1990); Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989).
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Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th DCA 1996)…since the notice of appeal was not filed within thirty days of the order setting aside default and default final judgment. See Fla.R.App.P. 9.130(b). Appellant’s motion for rehearing did not toll the time for filing an appeal. Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d DCA 1992); Fla.R.App.P. 9.020(g). The order denying the motion for rehearing is not an appealable order. Richardson, 611 So. 2d at 1255; Bastida v. Vitaver, 590 So. 2d 1092, 1092-93 (Fla. 3d DCA 1991); APPEAL DISMISSED. GLICKSTEIN…
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Sykes v. Farmex Int'l, Ltd., 747 So. 2d 422 (Fla. 2d DCA 1999)…kes appeals an order denying his motion for reconsideration of the trial court’s order discharging his notice of lis pendens. We dismiss the appeal because the order denying the motion for reconsideration is not appealable. See Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992) (holding that a trial court’s order denying a motion for reconsideration of a nonfinal order is not appealable); Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th DCA 1996). Appeal dismissed. CAMPBELL, A.C.J., and PARKE…
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Agere Sys. Inc. v. ALL Am. Crating, Inc., 931 So. 2d 244 (Fla. 5th DCA 2006)…e allowable time. Moreover, an order that simply denies a motion for reconsideration or rehearing of an underlying non-final order, such as the one sought to be appealed in this case, is not in itself an appealable order. See Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992). Since the notice of appeal was filed more than thirty days from the date of the underlying order for which reconsideration was sought, we do not have jurisdiction to review this matter. Accordingly, in the absence of jurisdiction…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- R.S. Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989)
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Skinner v. Skinner, 561 So. 2d 260 (Fla. 1990)
- Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d DCA 1982)
- Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 1983)
- Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985)
- Avatar Props., Inc. v. Donestevez, 575 So. 2d 785 (Fla. 2d DCA 1991)
- Azar v. Azar, 584 So. 2d 185 (Fla. 4th DCA 1991)
- Michael H. McMILLAN, D.M.D. v. McGILL, 584 So. 2d 185 (Fla. 2d DCA 1991)