DECKTIGHT ROOFING SERVICES, INC., A FLORIDA CORPORATION, PETITIONER,
v.
AMWEST SURETY INSURANCE, A FLORIDA CORPORATION AND DITOCCO KONSTRUCTION, INC., A FLORIDA CORPORATION, RESPONDENTS
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Decktight, a roofing subcontractor, sought certiorari and mandamus relief from a trial court's order compelling arbitration of its statutory bond claim against a surety insurer. The appellate court dismissed the certiorari petition and denied mandamus relief, holding that Decktight waived its right to appeal the non-final arbitration order by filing successive motions rather than timely appealing, and that mandamus was inappropriate where controverted factual issues remained.
The court held that Decktight waived its right to appeal the non-final arbitration order by failing to appeal within thirty days and instead filing successive motions addressing the same issue, thereby circumventing appellate procedure rules. The court also held that mandamus relief was inappropriate where controverted issues of fact remained to be resolved.
[1] Motions for reconsideration or rehearing of non-final orders do not toll the time for filing a notice of appeal or petition for writ of certiorari.
[2] A party cannot circumvent the time limitations for non-final orders by filing a second motion addressing the same issue raised and decided in an earlier motion.
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Join FLexlaw to unlock all legal intelligence“Unlike authorized and timely motions directed to a final order (which defers rendition until the disposition thereof), motions for reconsideration or rehearing of non-final orders are unauthorized and do not toll the time for filing a notice of appeal or petition for writ of certiorari.”
Establishes that successive motions for reconsideration of non-final orders do not extend the thirty-day appeal deadline
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Join FLexlaw to unlock all legal intelligenceDecktight brought a statutory bond claim under Florida Statutes Section 713.28 against Amwest Surety Insurance regarding construction of a motel in Ma…
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PER CURIAM.
Decktight Roofing Services, Inc. (“Deck-tight”) seeks certiorari and mandamus relief from orders denying its Motion to Vacate Arbitration Order and Motion for Partial Final Judgment. We find no basis for certiorari review and dismiss the petition. Similarly, we also deny the petition for writ of mandamus.
This petition arises from a statutory bond claim brought under Florida Statutes Section 713.28 by Decktight, a roofing subcontractor, against Amwest Surety Insurance (“Amwest”) in connection with construction of a motel in Marathon, Florida. Amwest filed a third-party complaint against the general contractor, DiTocco Konstruction (“DiTocco”).
The trial court stayed Deck-tight’s action and compelled arbitration on March 30, 2001. Decktight moved to vacate the court’s arbitration order on April 6, 2001, requesting rehearing and reconsideration. An order determining a party’s entitlement to arbitration is considered a non-final order under Florida Rule of Appellate Procedure. 9.130(a)(3)(C)(iv).
Unlike authorized and timely motions directed to a final order (which defers rendition until the disposition thereof), motions for reconsideration or rehearing of non-final orders are unauthorized and do not toll the time for filing a notice of appeal or petition for writ of certiorari. See Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th DCA 1996); Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992).
See also Fla.R.App.P. 9.020(h).
Decktight should have appealed the arbitration order as a non-final appeal when it was entered on March 30, 2001.
Nearly a year after filing its motion to vacate the arbitration order, Decktight renewed its motion. A party cannot circumvent the “strict” thirty-day time limitation imposed for non-final orders by filing a second motion addressing the same issue raised and decided in an earlier motion, and then seek review of the second motion by certiorari. See Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094, (Fla. 4th DCA 1991)(“Petitioner cannot evade the time requirements of Florida Rule of Appellate Procedure 9.100(c) by filing successive motions addressed to the same issue.”). Decktight waived its appeal of the nonfinal arbitration order and must wait until a final judgment is entered to seek review.
We also reject Decktight’s claim that it is entitled to have a Partial Final Judgment entered because the insolvency of Amwest effectively left it without a remedy and brought its claim against the surety to an end. The fact that Decktight’s claims are frustrated by the absence of a payment bond does not entitle it to a final judgment at this juncture. Since DiTocco has defenses to payment, arbitration is necessary to determine the extent of Deck-tight’s recovery. Mandamus is not a favored remedy when controverted issues of fact must be resolved. Sandpiper Bay, Inc. v. LaChance, 384 So. 2d 948 (Fla. 4th DCA 1980). There remain issues of fact concerning the amount owed.
The trial court was justified in refusing to rule because it had a lawful basis to reserve ruling on the matter. For the above reasons, the petition for certiorari is dismissed and the petition for mandamus relief is denied.
STONE, KLEIN and TAYLOR, JJ., concur.
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Morton & Oxley, Ltd. v. Charles S. EBY, M.D., P.A., 916 So. 2d 820 (Fla. 2d DCA 2005)…nal temporary injunction order that was entered on April 22, 2003. Furthermore, a motion for rehearing of a nonfinal order is unauthorized and does not toll the time for filing a notice of appeal. Decktight Roofing Servs., Inc. v. Am-west Sur. Ins., 841 So. 2d 667, 668 (Fla. 4th DCA 2003); see also Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992); Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th DCA 1996).…
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Kristofer Louis-Gaston LaCARRERE v. Reilly, 987 So. 2d 816 (Fla. 3d DCA 2008)…ever, motions for reconsideration or rehearing of non-final orders are unauthorized and, therefore, do not toll the thirty-day time limit for filing the notice of appeal. See Fla. R.App. P. 9.020(h); Decktight Roofing Sens. Inc. v. Amwest Sur. Ins., 841 So. 2d 667 (Fla. 4th DCA 2003). The non-final order granting immediate payment of temporary child support was rendered on March 13, 2008. The appellant then filed a motion for rehearing or reconsideration, which did not toll the time for filing a notice of app…
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Conover v. State, 335 So. 3d 1231 (Fla. 4th DCA 2022)…r the petition as a petition for writ of certiorari because it was filed more than thirty days after rendition of the trial court’s order. Fla. R. App. P. 9.020(h), 9.100(c)(1); see also Decktight Roofing Servs., Inc. v. Amwest 2 Sur. Ins., 841 So. 2d 667, 668 (Fla. 4th DCA 2003). Petition dismissed. DAMOORGIAN, CIKLIN and LEVINE, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. Watson, 611 So. 2d 1254 (Fla. 2d DCA 1992)
- Bensonhurst Drywall, Inc. v. Ledesma, 583 So. 2d 1094 (Fla. 4th DCA 1991)
- Nationwide Ins. Co. v. Forrest, 682 So. 2d 672 (Fla. 4th DCA 1996)
- Sandpiper BAY, Inc. v. LaCHANCE, 384 So. 2d 948 (Fla. 4th DCA 1980)