SHIRLEY T. REILLY ET AL., APPELLANTS,
v.
HYSTER COMPANY ET AL., APPELLEES
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Appellants appealed a jury verdict and adverse judgment in a products liability action against Hyster Company. The appeal was dismissed for lack of jurisdiction because the notice of appeal was filed outside the thirty-day window after the final judgment's rendition date, and a motion for rehearing filed after judgment did not toll the deadline.
A motion for rehearing filed after a final judgment denying a motion for new trial does not toll the rendition date of the final judgment because the rules make no provision for such a motion. Therefore, a notice of appeal filed outside thirty days of the judgment's rendition date is untimely and the appellate court lacks jurisdiction.
[1] A motion for rehearing of an order denying a timely motion for new trial does not toll the time for filing a notice of appeal.
[2] A notice of appeal must be filed within the prescribed time after the rendition of the final judgment to confer jurisdiction on the appellate court.
Previewing 2 of 4 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“The rules make no provision for a motion for rehearing addressed to an order denying on the merits a proper and timely filed motion for new trial and, thus, appellant's motion for rehearing filed October 4, 1972, did not have the effect of tolling the rendition date of the final judgment.”
This establishes the core holding that under Florida rules, a motion for rehearing does not toll the time for appeal when filed after judgment.
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Join FLexlaw to unlock all legal intelligenceA jury verdict was returned on May 22, 1972, in favor of defendants-appellees. Appellant filed a timely motion for new trial. A final judgment denying…
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OWEN, Chief Judge.
It appears that the notice of appeal in this cause was not timely filed and, therefore, we must dismiss the appeal for lack of jurisdiction.
A jury verdict was returned on May 22, 1972, in favor of defendants-appellees. Appellant filed a timely motion for new trial. A final judgment for the defendants, reciting therein that the plaintiff’s motion for new trial was thereby denied, was filed September 28, 1972. The following day the judgment was assigned a book and page and duly recorded this being the rendition date. Rule 1.3, F.A.R. Thereafter, on October 4, 1972, plaintiff filed a motion for rehearing of the denial of her motion for new trial. The motion for rehearing was denied by order entered November 12, 1973. Notice of appeal was filed within thirty (30) days of this latter date.
The rules make no provision for a motion for rehearing addressed to an order denying on the merits a proper and timely filed motion for new trial1 and, thus, appellant’s motion for rehearing filed October 4, 1972, did not have the effect of tolling the rendition date of the final judgment.2 The notice of appeal, having been filed more than thirty (30) days after the rendition date, was untimely and therefore this court lacks jurisdiction of the appeal.3
Gratuitously, we observe that appellant has shown no error in the order denying her motion for new trial, the sole point raised on appeal.
Appeal dismissed.
DOWNEY, J., and SEAY, RUSSELL E., Jr., Associate Judge, concur. . Lee v. Elliott, Fla.App.1963, 155 So. 2d 169; Volumes in Value, Inc. v. Buy Mail International, Inc., Fla.App.1965, 177 So. 2d 511; and DePadro v. Moore, Fla.App.1968, 215 So. 2d 27.
. Wagner v. Bieley, Wagner & Associates, Inc., Fla.1972, 263 So. 2d 1.
. State ex rel. Diamond Berk Ins. Agency v. Carroll, Fla.1958, 102 So. 2d 129.
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Inaky Markevitch and Serena Markevitch v. van Harren, 429 So. 2d 1255 (Fla. 3d DCA 1983)…than one motion for rehearing from a final judgment, Fla.R.Civ.P. 1.530; see Volumes In Value, Inc., v. Buy Mail International, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965); see also State v. Morris, 359 So. 2d 478 (Fla. 1st DCA 1978); Reilly v. Hyster, 307 So. 2d 202 (Fla. 4th DCA 1975)], then it clearly was untimely as being filed more than ten days after the final judgment, Fla.R.Civ.P. 1.530(b). Thus, no matter what view is taken of the appellants’ November 19, 1982, motion for rehearing, either the trial cou…
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City OF Fort Lauderdale v. Fraternal Order OF Police, 582 So. 2d 162 (Fla. 4th DCA 1991)…and that the notice of appeal filed more than thirty days after the rendition of said order was untimely. See, e.g., Wagner v. Bieley, Wagner & Assoc., 263 So. 2d 1 (Fla.1972); Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d DCA 1982); Reilly v. Hyster, 307 So. 2d 202 (Fla. 4th DCA 1975). However, because the order under review is itself a non-ap-pealable, interlocutory order whether the notice was timely filed or not, we dismiss the instant appeal on this basis alone, without prejudice to the City to take a time…
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Gordon v. Richter, 528 So. 2d 374 (Fla. 3d DCA 1987)…Frazier v. Seaboard Sys. R.R., 508 So. 2d 345 (Fla.1987); Owens v. Jackson, 476 So. 2d 264 (Fla. 1st DCA 1985); Salkay v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 916 (Fla. 3d DCA), rev. dismissed, 402 So. 2d 612 (Fla.1981); Reilly v. Hyster Co., 307 So. 2d 202 (Fla. 4th DCA 1975). Although Richter argues that Gordon was not entitled to file a second motion for a new trial once her initial motion was denied, Richter’s argument misapprehends Gordon’s posture. Once Gordon’s first post-trial motion was denied…
Authorities Cited
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- State v. Honorable Charles A. Carroll, 102 So. 2d 129 (Fla. 1958)
- Volumes IN Value, Inc. v. BUY Mail Int'l, Inc., 177 So. 2d 511 (Fla. 3d DCA 1965)
- DePADRO v. Moore, 215 So. 2d 27 (Fla. 4th DCA 1968)
- LEE v. Elliott, 155 So. 2d 169 (Fla. 3d DCA 1963)