RIC HOLLIFIELD, PETITIONER,
v.
RENEW & CO., INC., A FLORIDA CORPORATION, AND ROBERT J. STOUT, INDIVIDUALLY, RESPONDENTS
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Ric Hollifield sought review of a trial court order that republished a non-final order to allow respondents to take a timely appeal. The Florida District Court of Appeal granted the petition, holding that the trial court exceeded its authority under Florida Rule of Civil Procedure 1.540 by using it to effectuate an otherwise untimely appeal where the attorney's neglect was not attributable to court action.
The trial court lacked authority to grant the relief under Rule 1.540(b) for two independent reasons: (1) Rule 1.540 does not authorize relief from purely attorney negligence unattributable to court action, and (2) Rule 1.540 applies only to final judgments, not non-final orders such as the one at issue.
[1] A trial court may not use Florida Rule of Civil Procedure 1.540 to grant relief from a non-final order to allow an otherwise untimely appeal.
[2] Florida Rule of Civil Procedure 1.540 applies only to final judgments, decrees, orders, or proceedings, not to interlocutory orders.
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Join FLexlaw to unlock all legal intelligence“a trial court does not have the authority to relieve a party of the consequences of his or her lawyer's mistake”
Establishes that Rule 1.540(b) cannot be used to excuse attorney negligence unattributable to court action
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Join FLexlaw to unlock all legal intelligenceHollifield sought a writ of certiorari to review a trial court order that republished a prior non-final order. This republication allowed respondents …
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By way of petition for a writ of certiora-ri, Ric Hollifield seeks review of a trial court order that republished a prior non-*617final order so that respondents could take a timely appeal in Case No. 1D08-3749. We grant the petition because the circuit court departed from the essential requirements of law in utilizing Florida Rule of Civil Procedure 1.540 to allow an otherwise untimely notice of appeal. We conclude that petitioner has shown sufficient harm to invoke our jurisdiction because he would otherwise be required to appear in an appeal as to which this court has no jurisdiction.
Contrary to the trial court’s conclusion, this case is not controlled by Pompi v. City of Jacksonville, 872 So.2d 931 (Fla. 1st DCA 2004), whose holding applies to cases where the court or court staff substantially contributed to counsel’s failure to file a timely notice of appeal. Pompi and similar cases “all involve situations in which a party’s ability to file a notice of appeal in a timely manner was stymied or hindered by action attributable to the trial court or the clerk.” David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280 (Fla. 2d DCA 2008). In Pompi, counsel excusably missed the deadline for appealing a judgment whose date of rendition was so confusing on its face that a court clerk replicated counsel’s mistake in misreading the date stamp. 872 So.2d at 933. Whatever else may be said of the order at issue here, no action attributable to the circuit court or court personnel contributed to counsel’s neglect in failing to take a timely appeal. Rather, as counsel conceded, the neglect occurred entirely in his office. The trial court did not have authority to grant relief from judgment under such circumstances. See Dresdner, 972 So .2d at 276 (holding that “a trial court does not have the authority to relieve a party of the consequences of his or her lawyer’s mistake” by using Rule 1.540(b) to effectuate an otherwise untimely appeal); accord Woldarsky v. Woldarsky, 243 So.2d 629, 630 (Fla. 1st DCA 1971) (authorizing use of rule 1.540(b) “to grant relief to a party desiring to seek review of a final judgment, decree or order, the rendition of which the party was without notice or knowledge,” where party alleged judgment was rendered without any notice or service).
As an alternative ground for issuance of the writ, our review discloses that Rule 1.540(b), under which the trial court granted relief, does not authorize relief from the type of order involved in this case. Rule 1.540 authorizes a trial court to grant relief “from a final judgment, decree, order, or proceeding” — not from a non-final order such as that at issue here. Fla. R. Civ. P. 1.540(b); see Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 315 (Fla. 3d DCA 2000) (explaining that “Rule 1.540 applies only to final judgments, not to interlocutory orders”); Badger v. Badger, 568 So.2d 79, 80 (Fla. 4th DCA 1990) (“We commence by pointing out that the order ... holding the husband in contempt was a non-final order. That being the case, Florida Rule of Civil Procedure 1.540(b) was not available to the husband, since that rule may be directed only to final judgments.”); see generally Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93, 97-98 (Fla. 1st DCA 2003) (commenting that, because underlying order was non-final, “a motion [for relief pursuant to rule 1.540] addressed to it is not a motion seeking relief from a final judgment, order, decree or proceeding”). But see Wechsler v. Wechsler, 436 So.2d 1090, 1091 (Fla. 3d DCA 1983) (holding, without elaboration, that party was entitled to relief under rule 1.540(b) from order denying exceptions to general master’s report). To respondents, the trial court granted relief that the rule does not authorize.
*618Accordingly, the circuit court departed from the essential requirements of law and worked irreparable harm to petitioner by granting relief from a non-final order to effectuate an otherwise untimely appeal.
Petition GRANTED.
KAHN, THOMAS, and ROBERTS, JJ, concur.
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Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927 (Fla. 3d DCA 2016)…l of Bryant’s motion to vacate the order of writ of possession, we [*930] note that a motion to vacate pursuant to Rule 1.540(b) cannot be directed toward non-final orders such as the writ of possession, an order here. See Hollifield v. Renew & Co., 18 So. 3d 616, 617 (Fla. 1st DCA 2009) (“Rule 1.540 authorizes a trial court to grant relief ‘from a final judgment, decree, order, or proceeding’ — not from a non-final order_”). Moreover, even if the motion to vacate had been the proper procedural vehicle below…
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Stubbs v. Fed. Nat'l Home Loan, 250 So. 3d 151 (Fla. 2d DCA 2018)…ursuant to [Florida Rule of Civil Procedure] 1.540(b) cannot be directed toward non-final orders such as the writ of possession." Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 930 (Fla. 3d DCA 2016); see also Hollifield v. Renew & Co., Inc., 18 So. 3d 616, 617 (Fla. 1st DCA 2009) ("Rule 1.540 authorizes a trial court to grant relief 'from a final judgment, decree, order, or proceeding'–not from a non-final order . . . ."). Consequently, a rule 1.540 motion directed to a non-final order is imprope…
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Emerald Coast Utils. Auth. v. Bear Marcus Pointe, LLC, 227 So. 3d 752 (Fla. 1st DCA 2017)…s court noted “the fact that a deputy court clerk made precisely the same mistake when reporting the filing date on the telephone is at least some indication that counsel’s error was excusable.” Id. Subsequently, in Hollifield v. Renew & Co., Inc., 18 So. 3d 616 (Fla. 1st DCA 2009), this court observed that the trial court had no authority to grant relief from judgment where the neglect in failing to take a timely appeal occurred entirely within the office of the party’s counsel and no action attributable t…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennett's Leasing, Inc. v. First St. Mortg. Corp., 870 So. 2d 93 (Fla. 1st DCA 2003)
- Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)
- David M. Dresdner, M.D., P.A. v. The Charter OAK Fire Ins. Co., 972 So. 2d 275 (Fla. 2d DCA 2008)
- Hialeah Hotel, Inc. v. Woods, 778 So. 2d 314 (Fla. 3d DCA 2000)
- Kenneth and Yvonne Pompi v. City OF Jacksonville, 872 So. 2d 931 (Fla. 1st DCA 2004)
- Randale L. Cole v. State, 568 So. 2d 79 (Fla. 5th DCA 1990)
- Wechsler v. Wechsler, 436 So. 2d 1090 (Fla. 3d DCA 1983)