Smith v. WeedeSmith v. Weede
ON RENEWED MOTION TO DISMISS
Appellee has moved to dismiss the appeal on the basis that the notice of appeal was not filed within thirty days of rendition of the order denying the motion and amended motion to set aside the default.
“Rendition” of an order is defined as the filing of a signed written order with the clerk of the lower tribunal.
Here, the notice of appeal was not filed within thirty days of the order being reviewed, but was filed within thirty days of rendition of the order denying the motion for rehearing. Our inquiry then is directed to whether the motion for rehearing was “authorized.“.
Appellants argue that the motion was a post-decretal order, citing Clearwater Federal Savings & Loan Assoc. v. Sampson, 336 So.2d 78 (Fla. 1976), in which the supreme court drew a distinction between orders entered before and after final judgment:
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, [263 So.2d 1 (Fla. 1972)]. 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 in 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.
Sampson involved an order entered after a final judgment of foreclosure, wherein the trial court ordered that the mortgagee was entitled to certain funds that had been paid into the court‘s registry. The mortgagor had filed a petition for rehearing directed to this order which was denied by the trial court. The mortgagor then took an appeal from the order, with the notice of appeal being filed within 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
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.’
Appellee contends that the order is non-final, citing Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982). Smeja had moved to set aside the judgment pursuant to
Florida Rule of Appellate Procedure 9.130 ... unequivocally specifies that orders entered underrule 1.540 constitute nonfinal orders which are subject to review under that rule. Thus,rule 9.130(a)(1) states, `This rule applies to review of the non-final orders authorized herein in the district courts of appeal and the circuit courts.’Subsection (5) of the rule then reads, `Orders entered on motions filed pursuant toFla.R.Civ.P. 1.540 are reviewable by the method prescribed by this rule.’Thus, we conclude that there is no provision for seeking a rehearing of an order entered under
rule 1.540(b) . Potucek‘s filing of a motion for rehearing, even though the trial court entertained it, did not toll the time for taking an appeal. When the notice of appeal was finally filed, it was untimely.
Appellants argue that Potucek is inapplicable because there the court set aside the default judgment. Appellants note that the traditional test for “finality” is whether judicial labor has come to an end. Florida Farm Bureau Ins. v. Austin Carpet Service, 382 So.2d 305 (Fla. 1st DCA 1979). As the judgment in Potucek was set aside, the judicial labor had not terminated and hence appellants argue that the order was clearly non-final.
It should be noted that other courts have treated orders denying motions to vacate final judgments as non-final orders. See Maugeri v. Plourde, 396 So.2d 1215 (Fla. 3d DCA 1981) [order denying a motion to set aside a settlement reviewable under
As was discussed above, the court in Potucek concluded that the new appellate rules have designated all orders on motions filed pursuant to
Rule 9.130 . Proceedings to review non-final orders(a) Applicability
* * * * * *
(5) Orders entered on motions filed pursuant to
Fla.R.Civ.P. 1.540 are reviewable by the method prescribed by this rule.
It can be argued that this subsection applies only to orders which are non-final under the traditional test for finality and that final orders on motions filed pursuant to
Under this analysis, all orders on motions to set aside all judgments pursuant to
(3) Review of non-final orders of lower tribunals is limited to those which:
* * * * * *
(C) determine:
(iv) The issue of liability in favor of a party seeking affirmative relief.
In Doctor‘s Hosp. of Hollywood v. Madison, 411 So.2d 190 (Fla. 1982), the supreme court held that an order denying a motion to set aside a default judgment is appealable under
We conclude that the order denying the motion and the amended motion to set aside the default is non-final under either
We GRANT the motion and DISMISS the appeal.
DAUKSCH and COBB, JJ., concur.