JOE TROIANO, ETC., APPELLANT,
v.
JOSE MANUEL TIZON, ET AL., APPELLEES
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Joe Troiano, a court reporter, appealed an order denying his motion to vacate a post-judgment order requiring him to provide trial transcripts at a rate of $2.80 per page. The court affirmed the denial, holding that review of a motion to vacate is limited to whether the trial court abused its discretion in ruling on the motion itself, not the merits of the underlying order sought to be vacated.
The trial court did not abuse its discretion in denying the motion to vacate, and an appeal from the denial of a motion to vacate does not permit review of the merits of the underlying order sought to be vacated. Review is confined to whether the trial court abused its discretion in ruling on the motion itself.
[1] A trial court does not abuse its discretion in denying a motion to vacate an order when the court resolves factual disputes regarding notice after receiving evidence and…
[2] An appeal from an order denying a motion to vacate a prior order does not bring up for review the merits of the prior order that was sought to be vacated.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[A] denial ... of a motion to vacate a final judgment cannot bring up for review the merits of the final judgment sought to be vacated. The inquiry must be confined to determining whether in ruling on the motion the trial court abused its discretion on the facts and circumstances asserted in the motion's behalf.”
Establishes the fundamental principle limiting appellate review of orders denying motions to vacate to the discretionary ruling itself, not the merits of the underlying judgment.
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Join FLexlaw to unlock all legal intelligenceTroiano was the court reporter for a civil trial in which judgment was entered for Royal Caribbean. When the opposing party appealed and requested tra…
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JORGENSON, Judge.
Joe Troiano, an official court reporter in the Eleventh Judicial Circuit, appeals from an order denying his motion to vacate a post judgment order directing him to provide an original trial transcript and setting the rate for transcription. We affirm.
Troiano was the court reporter for a civil trial, Tizón v. Royal Caribbean Cruises, in the Eleventh Judicial Circuit. After judgment was entered for Royal Caribbean, Tizón filed a notice of appeal; his attorney filed designations to Troiano to prepare an original and one copy of the trial transcript and forwarded a deposit. By separate letter to Troiano, Tizon’s counsel reserved the right to ask the trial court to set the rate and allow him to order only the original. On December 23, 1992, Tizon’s attorney filed a motion to require the court reporter to provide only the original transcript and to determine the rate. Although the certificate of service indicates that Troiano was served with the motion, he alleges that he never received it, and likewise never received a notice of hearing on the motion.1 The hearing was held on January 28; Troiano did not-appeal’. The court granted Tizon’s motion and by order dated January 28,1993, directed the court reporter, Troiano, to prepare the original of the transcript only and set the rate of $2.80 per page, “in compliance with general order no. 14.” General Order No. 14 provides the following schedule of fees for court reporters:
TRANSCRIPTS — Jury and Non^Jury Trials:
Original page only...$2.80
Original page and one carbon copy — $2.80
Each additional carbon copy per page-$-95
TRANSCRIPTS — Appeal
Original page only.$3.80
Original page and one carbon copy — $3.80
Original page and two carbon copies~$3-80
Each additional carbon copy per page~$-95
The general order does not explain which proceedings fall under the “Jury and Non-Jury Trials” category and which fall under the “Appeal” category.
Troiano received a copy of the order setting fees on February 22, 1993, less than thirty days after it was entered. Instead of appealing that order he filed a motion to vacate pursuant to Florida Rule of Civil Procedure 1.640 on February 25. In his motion he alleged that he had received no notice of the hearing and that the order erroneously set the rate at $2.80 per page for a “Jury and Non-Jury Trial” instead of $3.80 per page for an “Appeal.” The trial court denied that motion; Troiano appeals from the order denying relief under rule 1.540.
The trial court did not abuse its discretion in denying the motion to vacate. The court resolved the factual dispute over the issue of notice after receiving evidence and hearing argument of counsel, and we will not disturb its ruling, which is supported by the record.
Troiano also attacks the merits of the order setting fees. His appeal from the order denying his motion to vacate does not encompass the merits of the order that he sought to vacate.
“[A] denial ... of a motion to vacate a final judgment cannot bring up for review the merits of the final judgment sought to be vacated. The inquiry must be confined to determining whether in ruling on the motion the trial court abused its discretion on the facts and circumstances asserted in the motion’s behalf. The motion does not affect the finality of the final judgment or suspend its operation.”
Bland v. Mitchell, 245 So. 2d 47 (Fla.1970) (footnotes omitted). See also Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988) (review of order denying relief does not include merits of final decree sought to be vacated or any other order or judgment) (citations omitted). We are thus precluded from addressing the merits of the January 28, 1993 order.2
AFFIRMED.
. However, in a letter to Troiano, Tizon’s counsel specifically indicated that he had "pending a Motion to allow me to purchase an original only,” and that the amount due for transcription would "be brought up with the Trial Court when the Motion is heard.”
. We trust that this opinion will bring to the attention of the Chief Judge of the Eleventh Judicial Circuit the confusion engendered by General Order No. 14. The order should be clarified. See Blalock v. Pena, 569 So. 2d 778, 779 n. 1 (Fla. 1st DCA 1990) (no justification exists to charge higher rates for transcribing proceedings that result in appeal).
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Saint Luc Jean Noel v. James B. Nutter & Co., 232 So. 3d 1112 (Fla. 3d DCA 2017)…ments of attorney's fees and costs. The law is clear that, an appeal from an order denying a motion to vacate under rule 1.540(b) does not encompass .the merits of the final judgment sought tp be vacated or any other judgment.' See Troiano v. Tizon, 632 So. 2d 251, 252-53 (Fla. 3d DCA 1994); Shields v. Flinn, 528 So. 2d 967, 968 (Fla. 3d DCA 1988).…
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Balbin v. Lexington Ins. Co., 982 So. 2d 10 (Fla. 3d DCA 2008)…ith the trial court that the issues raised in the third and fourth amended motions for relief from judgment should have been pursued by direct appeal. A motion for relief from judgment may not be used as a substitute for appeal. In Troiano v. Tizon, 632 So. 2d 251 (Fla. 3d DCA 1994), this Court stated: [A] denial ... of a motion to vacate a final judgment cannot bring up for review the merits of the final judgment sought to be vacated. The inquiry must be confined to determining whether in ruling on the moti…
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Palomares v. Palomares, 730 So. 2d 705 (Fla. 3d DCA 1998)…two copies at $.80 per page. We reject the ‘finding1 that parties in appeal and non-appeal proceedings are subject to different circumstances as self-serving and unsupported by any material facts. Id. This court cited Blalock in Troiano v. Tizon, 632 So. 2d 251 (Fla. 3d DCA 1994), specifically noting the First District’s statement rejecting the distinction between appeal and non-appeal proceedings. Id. at 253, n. 2. [*708] The purpose of Rule 9.200(b)(2) would be defeated if court importers were permitted…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shields v. Flinn, 528 So. 2d 967 (Fla. 3d DCA 1988)
- Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)
- Blalock v. Victor A. Pena, M.D., 569 So. 2d 778 (Fla. 1st DCA 1990)