ROBERT PATTERSON, APPELLANT,
v.
JAMES V. CROSBY, JR., APPELLEE
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Trial court erred by failing to address appellant's claim for relief from a dismissal order based on not receiving timely notice, requiring remand to consider the motion under Florida Rule of Civil Procedure 1.540(b).
A trial court must address a party's motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) when the party alleges he was not timely furnished a copy of the dismissal order.
[1] When a party alleges that a trial court's order was not timely furnished, the proper procedure is to file a motion under Florida Rule of Civil Procedure 1.540(b) requesti…
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Join FLexlaw to unlock all legal intelligence“the proper means for seeking a belated appeal in a civil matter where it is alleged that a copy of the trial court's order was not timely furnished to the party is to file a motion in the trial court under Florida Rule of Civil Procedure 1.540(b)”
Explaining the correct procedure for addressing delayed receipt of trial court orders
Patterson filed a petition for writ of mandamus against Crosby, which was dismissed. Patterson did not receive a copy of the dismissal order until aft…
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PER CURIAM.
Upon consideration of appellee’s concession of error and motion for remand, we agree that the trial court erred by failing to address appellant’s claim that he is entitled to-relief from the order dismissing'his petition for writ of mandamus because he was not furnished a copy of that order until after the time for seeking appellate review had expired. As we held in Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998), the proper means for seeking a belated appeal in a civil matter where it is alleged that a copy of the trial court’s order was not timely furnished to the party is to file a motion in the trial court under Florida Rule of Civil Procedure 1.540(b), requesting that the original order be set aside and a new order entered so that the right to seek appellate review may be preserved. See also, Powell v. Department of Corrections, 727 So. 2d 1103 (Fla. 1st DCA 1999). Appellant’s motion for relief from judgment alleged a facially valid claim in this regard, but that claim was not addressed in the trial court’s order denying appellant’s motion. Accordingly, that order is reversed and remanded with directions to consider-appellant’s claim that he is entitled to relief from the dismissal order on grounds that he was not furnished a copy of that order prior to the expiration of the time for invoking this court’s appellate jurisdiction.
REVERSED and REMANDED.
KAHN, C.J., WEBSTER and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jarvis v. Carolanne Bracewell, 121 So. 3d 1133 (Fla. 1st DCA 2013)…the order denying Petitioner’s “Motion for Belated Rehearing” as untimely. Although styled as a motion for rehearing, the body of the motion clearly and properly sought relief under Florida Rule of Civil Procedure 1.540(b). See Patterson v. Crosby, 917 So. 2d 1033, 1034 (Fla. 1st DCA 2006) (explaining that rule 1.540(b) is the proper means for seeking relief from an order that was not furnished to a party until after the time for appeal had expired); Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998) (same).…
Authorities Cited
- Powell v. Fla. Dep't OF Corr. & Fla. Parole Comm'n, 727 So. 2d 1103 (Fla. 1st DCA 1999)
- Nugent Hutchins v. Gale Indus. & Scibal Assocs. of Fla., Inc., 708 So. 2d 1041 (Fla. 1st DCA 1998)
- Brown v. State, 708 So. 2d 1041 (Fla. 1st DCA 1998)