BETTY GREEN FRANK, APPELLANT,
v.
CHARLES AMARA AND MAXWELL K. WELCH, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In an automobile negligence case, the court addressed whether it had jurisdiction to review an order denying the plaintiff's motion for relief from dismissal for failure to prosecute. The court held that while appeals from orders denying rehearing or reinstatement are generally not appealable, orders denying relief under Rule 1.540(b) are appealable, and the appeal would be treated as an interlocutory appeal.
The court held that appeals from orders denying rehearing or reinstatement under Rule 1.420(e) are not appealable, but orders denying relief under Rule 1.540(b) are appealable because such relief may be sought within one year. The court granted the motion to dismiss insofar as it sought review of the denial of rehearing or reinstatement, but denied the motion to dismiss insofar as it sought review of the denial of relief under Rule 1.540(b).
[1] An appeal from an order denying a motion for rehearing is generally not permitted.
[2] An order denying relief sought under Rule 1.540(b) is appealable.
Previewing 2 of 5 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“an appeal from an order denying a motion or petition for rehearing will not lie”
Establishes the general rule that appeals from rehearing denials are not permitted
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff filed a complaint in an automobile negligence case against two defendants. The trial court dismissed the complaint for failure to prosec…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Relief from Judgment or Order cases and more on FLexlaw
ON MOTION TO DISMISS
Appellees, defendants below, in an automobile negligence case, seek dismissal of this appeal to review an order denying appellant’s motion made in the trial court seeking relief from an order dismissing her complaint for failure to prosecute the same. The said motion asserted several alternative theories upon which the appellant relied.
Appellees bottom their motion to dismiss the appeal on the ground that the order sought to be reviewed herein is nonappealable, and therefore this court lacks jurisdiction. Appellees’ contention in this regard is premised on the wording of appellant’s notice of appeal indicating that its purpose is “ * * * to review the order denying said plaintiff’s motion for '•ehear-ing, for reinstatement of the case and relief from order of dismissal dated December 2, 1969. * * *”
The cases and argi- mentation advanced by appellees in support of the motion direct *538this court’s attention to the body of cases holding that an appeal from an order denying a motion or petition for rehearing will not lie. Representative of such cases is Finley v. Finley, Fla., 103 So.2d 191, and Young Adults for Progressive Action, Inc. v. B & B Cash Grocery Stores, Inc., Fla., 157 So.2d 809. The rule elaborated upon in such cases is the controlling law of this jurisdiction. Were appellant’s notice of appeal directed to only that portion of the trial court’s order denying rehearing, we would be inclined to grant appellees’ motion to dismiss this appeal. However, the order sought to be reviewed herein is broader in scope than that which appellees represent unto this court. Appellant’s motion below included a prayer for relief under Rule 1.-540(b), F.R.C.P., 31 F.S.A., by which appellant sought to be relieved from the final order dismissing her complaint for failure to prosecute on the ground that the said dismissal order was entered as a result of excusable neglect. The order denying appellant’s motion for relief denied appellant’s request for rehearing under Rule 1.530 and reinstatement under Rule 1.420(e), 30 F.S. A. But, the order did not stop there; it also denied relief under Rule 1.540(b). Since relief under the latter rule may be sought within a reasonable time not to exceed one year, it cannot be said that appellant’s motion in that respect was not timely nor that review of an order granting or denying relief under Rule 1.540 may not be reviewed on appeal. See Odum v. Morningstar, 158 So.2d 776 (Fla.App. 1963), and State ex rel. Avery v. Williams, 222 So.2d 477 (Fla.App.1969), in which the court distinguished motions for relief pursuant to Rule 1.540 and motions attempting reinstatement of a cause dismissed for failure to prosecute under Rule 1.420(e).
Accordingly, we hold that appel-lees’ motion to dismiss this appeal insofar as it seeks review of the lower court’s order denying rehearing or reinstatement under Rule 1.420(e) is well founded and is therefore partially granted. However, to the extent that the notice of appeal seeks review of the lower court’s order denying relief under Rule 1.540(b), appellees’ motion to dismiss is denied.
Inasmuch as we are retaining jurisdiction of this appeal to review that portion of the lower court’s order coming within the purview of Rule 1.540(b), this cause was improvidently filed as a full appeal as if from final judgment under Florida Appellate Rule 3.2 32 F.S.A. The order reviewed being post-decretal in nature, this appeal should have been filed under Appellate Rule 4.2, relating to interlocutory appeals. In keeping with our ruling in Crepaldi v. Wagner, 128 So.2d 759 (Fla.App. 1961), we hold that this appeal shall be treated as an interlocutory appeal.
JOHNSON, C. J., and WIGGINTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)…oved. ERVIN, C. J., ROBERTS and CARLTON, JJ., and MURPHREE, Circuit Judge, concur. . Bland v. Mitchell, 231 So. 2d 224 (Fla.App., 1970). . 127 So. 2d 134 (Fla.App., 1961). . 127 So. 2d 134 (Fla.App., 1961). . 223 So. 2d 365 (Fla.App., 1969). . 235 So. 2d 537 (Fla.App., 1970). .See also Odum v. Morningstar, 158 So. 2d 776 (Fla.App., 1953). The portion of Odum distinguishing appealability of the denial from the granting of a Rule 1.540 motion is no longer pertinent because of subsequent amendments to Fla…
-
Reizen v. Fla. Nat'l Bank AT Gainesville, 237 So. 2d 30 (Fla. 1st DCA 1970)…ing or denying a petition or motion under the cited rule is reviewable on appeal. Odum v. Morningstar, 158 So. 2d 776 (Fla.App.1963); State ex rel. Avery v. Williams, 222 So. 2d 477 (Fla.App.1969); and our recent opinion in Frank v. Amara, Fla.App., 235 So. 2d 537, Opinion filed May 26, 1970. While we hold that we do have jurisdiction to entertain the instant appeal, it is our ruling that the order appealed from herein, that is, the order refusing to set aside the May 28 orders of contempt, attachment, and c…
-
Cutler Ridge Corp. v. Green Springs, Inc., 249 So. 2d 91 (Fla. 3d DCA 1971)…cient as a matter of law. To begin with, an interlocutory appeal is the proper means to review an order granting a motion to vacate and reinstating cross-claims. Odum v. Morning-star, Fla.App.1963, 158 So. 2d 776, 778; Frank v. Amara, Fla.App.1970, 235 So. 2d 537, 538. The general principles governing the motion to vacate under Rule 1.540 include the rule that the motion is addressed to the sound judicial discretion of the trial court. North Shore Hospital, Inc. v. Barber, Fla. 1962, 143 So. 2d 849, 852-853…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clyde Odum et ux. v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963)
- In re Crepaldi v. Wagner, 128 So. 2d 759 (Fla. 1st DCA 1961)
- State of Fla. ex rel. Fate Avery, Jr. v. The Honorable Gene Williams, 222 So. 2d 477 (Fla. 3d DCA 1969)
- Williams v. Levine, 103 So. 2d 191 (Fla. 1958)
- Finley v. Coralee Russell Finley, 103 So. 2d 191 (Fla. 1958)
- Young Adults FOR Progressive Action, Inc. v. B & B Cash Grocery Stores, Inc., 157 So. 2d 809 (Fla. 1963)
- Berrien v. U. S. Phosphoric Prods., 157 So. 2d 809 (Fla. 1963)