KHEM-TROLL, INC., A FLORIDA CORPORATION; AND MURRAY H. MICHAEL, INDIVIDUALLY, APPELLANTS,
v.
GILBERT M. EDELMAN, APPELLEE
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This case addresses the procedural classification of post-judgment orders and determines whether an appeal of an order denying a motion to vacate a final judgment is properly before the court. The court held that post-judgment orders disposing of distinct issues constitute final post-decretal orders subject to plenary appeal rather than interlocutory orders.
Post-judgment orders that are dispositive of any question and complete the judicial labor on that portion of the cause after judgment are final post-decretal orders, not true interlocutory orders, and are subject to plenary appeal. Therefore, a petition for rehearing may properly be directed to such a post-decretal order, and it extends the time for filing notice of appeal.
[1] A motion to vacate a final judgment under Fla.R.Civ.P. …
[2] A post-decretal order that is dispositive of a question after final judgment is considered a final post-decretal order, subject to plenary appeal.
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Join FLexlaw to unlock all legal intelligence“An interlocutory order entered after judgment, post decretal order, is not to be confused with one entered during the pendency of the proceedings before final judgment.”
Establishes the key distinction between post-decretal orders and true interlocutory orders
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Join FLexlaw to unlock all legal intelligenceAppellants Khem-Troll, Inc. and Murray H. Michael moved to vacate a final judgment pursuant to Fla.R.Civ.P. 1.540, which was denied by order dated Apr…
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DOWNEY, Judge.
ON MOTION TO DISMISS APPEAL
Appellants’ motion to vacate a final judgment pursuant to Fla.R.Civ.P. 1.540, was denied by order dated April 15, 1976. Appellants served a petition for rehearing within ten days; it was denied by order dated June 7, 1976. Notice of appeal was filed on July 6, 1976, to review the foregoing orders of April 15th and June 7th.
Appellee has moved to dismiss the appeal contending that the appeal should be directed to the final judgment. In opposition to said motion to dismiss appellants contend that this is an interlocutory appeal pursuant to Florida Appellate Rule 4.2, citing Bland v. Mitchell, 245 So. 2d 47 (Fla.1970).
If appellants’ contention that the orders in question are interlocutory in nature and may be reviewed pursuant to Florida Appellate Rule 4.2 is correct, then the appeal is untimely because there is no provision in the rules for a petition for rehearing directed to an interlocutory order. Wagner v. Bieley, Wagner & Associates, Inc., 263 So. 2d 1 (Fla.1972); Home News Publishing Co. v. U-M Publishing, Inc., 246 So. 2d 117 (Fla.1st DCA 1971). Prior to publication of Clearwater Federal Savings & Loan Assn. v. Sampson, 336 So. 2d 78 (Fla.1976), we would have supposed the orders in question were interlocutory and subject to review pursuant to Rule 4.2, and with good authority. That is what the Supreme Court said in Bland v. Mitchell, supra. We would have dismissed this appeal as untimely since the petition for rehearing would not have extended the time for filing notice of appeal. See Southwest Electric Supply v. Banfield, 302 So. 2d 810 (Fla.2d DCA 1974). However, in the Sampson case the Supreme Court has drawn a distinction between orders entered before and after final judgment. Therein the court states:
“An interlocutory order entered after judgment, post decretal order, is not to be confused with one entered during the pendency of the proceedings before final judgment. Cf. Wagner v. Bieley, supra. Post decretal orders are not true interlocutory orders, and perhaps the term ‘interlocutory’ is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment,- it becomes final as to that portion and should be treated as a final judgment, and, therefore, a petition for rehearing could be properly directed to such a post decretal order which constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment.”
We are here dealing with a “post decretal order” which is dispositive of the question of whether or not the final judgment may be vacated under Fla.R.Civ.P. 1.540. Therefore, because of the holding in the Sampson case, the order denying appellants’ motion to vacate is a “final post decretal order” subject to a plenary appeal. It follows therefore that appellants’ petition for rehearing was proper and that it extended the time for appealing from the “final post decretal order.”
For the foregoing reasons the appellee’s motion to dismiss this appeal is denied, and appellants are directed to prosecute this appeal in accordance with Part III of the Florida Appellate Rules.
It is so ordered.
MAGER, C. J., and ALDERMAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Smith v. Weede, 433 So. 2d 992 (Fla. 5th DCA 1983)…in thirty days of the order. The supreme court approved of the district court’s decision refusing to dismiss the appeal as untimely, finding that the final post decretal order was subject to a petition for rehearing. In Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976), the court, relying on Sampson, denied a motion to dismiss the appeal. In that case, Khem-Troll has moved to vacate a final judgment pursuant to rule 1.540. The trial court in an order denied this motion and Khem-Troll timely fil…
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Shell v. Foulkes, 19 So. 3d 438 (Fla. 4th DCA 2009)…pellate jurisdiction is only from final judgments and orders of the County Court; but statute gives Circuit Court jurisdiction by certiorari to review petition by State from order of County Court suppressing evidence). . Khem-Troll Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976) (order disposing of motion for relief under rule 1.540(b) is final order "subject to plenary review”); see also Bastida v. Vitaver, 590 So. 2d 1092 (Fla. 3d DCA 1991) (same); Francisco v. Victoria Marine Shipping Inc., 486 So. 2d…
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Arvida Corp. v. The Honorable Robert S. Hewitt & Jon Earhart, 416 So. 2d 1264 (Fla. 4th DCA 1982)…80). Third, this proceeding could be considered timely only if the trial court had denied the rehearing of a final post-judgment order. Clearwater Federal Savings & Loan Association v. Sampson, 336 So. 2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976); Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980). To have such an order there necessarily must be an existing judgment. That is not the case here. Fourth, petitioner inadvertently termed its petition “emergency” in nat…
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
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- Clearwater Fed. Sav. & Loan Ass'n v. Sampson, 336 So. 2d 78 (Fla. 1976)
- Home News Publ'g Co. v. U-M Publ'g, Inc., 246 So. 2d 117 (Fla. 1st DCA 1971)
- Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)
- Sw. Elec. Supply, Inc. v. Banfield, 302 So. 2d 810 (Fla. 2d DCA 1974)