JOHN MCGRATH, APPELLANT,
v.
ROBERT MARTIN, JR., ET AL., APPELLEES
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McGrath sought rehearing of a prior appellate order that had denied his motion for extension of time to file an amended notice of appeal and dismissed his appeal. The court granted the rehearing motion, finding that a timely motion for rehearing in the trial court tolled the time to appeal and therefore the appellate dismissal was improper.
The court granted the motion for rehearing, withdrew its prior order dismissing the appeal, and denied the appellee's motion to dismiss. The court found that McGrath's motion for rehearing filed in the trial court tolled the time to appeal, making the prior dismissal improper.
[1] A motion for rehearing filed in the trial court tolls the time to file an appeal of the trial court's dismissal for lack of prosecution.
[2] A timely filed motion for rehearing suspends the rendition of a final order, allowing the trial court to alter or change its judgment.
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Join FLexlaw to unlock all legal intelligence“We find the Motion for Rehearing filed in the trial court tolled the time to file the present appeal of the trial court's dismissal for lack of prosecution.”
Establishes the central holding that the trial court motion for rehearing suspended the time period for filing the appeal.
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Join FLexlaw to unlock all legal intelligenceMcGrath appealed a trial court order dismissing his case for lack of prosecution. He filed a motion for rehearing in the trial court. The appellate co…
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ON MOTION FOR REHEARING
John McGrath moves for rehearing of this Court’s October, 2016 Order which denied Appellant’s motion to file an amended notice of appeal and extension of time and granted Appellee’s motion to dismiss the appeal. For the reasons stated below we grant the Appellant’s motion for rehearing and we withdraw the prior order and issue the following corrected order.
We find the Motion for Rehearing filed in the trial court tolled the time to file the present appeal of the trial court’s dismissal for lack of prosecution. We deny Appellee’s Motion to Dismiss the Appeal. See De La Osa v. Wells Fargo Bank, N.A., 206 So.3d 259 (Fla. 3d DCA 2016); Patton v. Kera Technology, 895 So.2d 1175, 1178 (Fla. 5th DCA 2005) (“a successor judge entered an order dismissing the case, without prejudice, for lack of prosecution.Appellants filed a motion for rehearing, reconsideration and clarification, which the court denied and this appeal followed.”); Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004) (“The ‘Final Order Granting Defendant’s Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,’ entered on October 28, 2003 is a final order from which appellants failed to timely appeal or to move the lower court for rehearing.”[e.s.]); Cape Royal Realty v. Kroll, 804 So.2d 605, 606 (Fla. 5th DCA 2002) (“We find that Kroll’s motion to set aside the order of dismissal for lack of prosecution .... was intended to operate as a Rule 1.530 motion for rehearing. Upon the timely filing of a petition for rehearing (as was done in the instant case), the rendition of the final order is suspended and the trial court has the power and authority to completely alter or change its final judgment.”).
We also deny Appellant’s Motion to file an Amended Notice of Appeal as unnecessary.
It is important to note that an order on a motion that suspends rendition is not itself appealable. The effect of the motion is merely to delay the running of the time to appeal the original final order or judgment. For example, if a party has filed a timely and authorized motion for rehearing,' the motion would delay the time for taking an appeal from the final judgment to which the motion was directed. The order on the motion for rehearing is not appealable, it merely marks the beginning of the new time period for taking an appeal from the original final order or judgment and cases cited therein.
2 Fla. Prac., Appellate Practice § 2:4 (2016 ed.)
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- Churchville v. Ocean Grove R.V. Sales, Inc., 876 So. 2d 649 (Fla. 1st DCA 2004)
- Cape Royal Realty, Inc. v. Kroll, 804 So. 2d 605 (Fla. 5th DCA 2002)
- Patton v. Kera Tech., Inc., 895 So. 2d 1175 (Fla. 5th DCA 2005)