Bortz v. Bortz, 95-2179
| Decision Date | 20 May 1996 |
| Docket Number | No. 95-2179,95-2179 |
| Citation | 675 So.2d 622 |
| Parties | 21 Fla. L. Weekly D1225 Bruce Robert BORTZ, Appellant, v. Deborah Lynn BORTZ n/k/a Deborah Lynn Spencer, Appellee. |
| Court | Florida District Court of Appeals |
Glenn K. Allen, Jacksonville, for Appellant.
Dale G. Westling, Sr., Jacksonville, for Appellee.
Appellant (the former husband) seeks review of an amended order granting appellee's (the former wife's) motion seeking enforcement of provisions of a final judgment which had dissolved the parties' marriage. Because we conclude that the trial court lacked jurisdiction to enter the amended order in the absence of a timely and proper motion for rehearing, we reverse.
Represented by an attorney, the former wife filed a motion requesting enforcement of a provision of a settlement agreement incorporated by reference into the final judgment which had dissolved the parties' marriage. Through his attorney, the former husband filed a response, denying that the former wife was entitled to enforcement of the provision. At the conclusion of an evidentiary hearing held on May 8, 1995, the trial court orally announced that the former wife's motion was denied, and requested counsel for the former husband to prepare a proposed order. On May 16, an order denying the former wife's motion was filed. On May 24, a different attorney filed a motion, purportedly on behalf of the former wife, requesting a rehearing. No motion was filed requesting that the new attorney be permitted to replace the former wife's prior attorney. Following another hearing on June 9, the trial court entered an "amended order" on June 13, reversing itself and granting the former wife's request for enforcement. The amended order contains the following language:
Present at the hearing [on the motion for rehearing] were the attorney for the former husband and the attorney who filed the instant motion and who intends to be substituted for the former wife's present attorney. Because no such substitution of counsel has yet occurred, the Court finds that it cannot consider the motion for rehearing "filed" by the former wife; however, the Court sua sponte determines that its previous order should be clarified and amended.
On appeal, the former husband argues that, because it correctly concluded that the motion for rehearing was a nullity, the trial court lacked jurisdiction to proceed to change its decision and to enter the amended order. We agree.
Florida Rule of Judicial Administration 2.060(h), entitled "Substitution of Attorneys," directs that, although "[a]ttorneys for a party may be substituted at any time by order of court[,] [n]o substitute attorney shall be permitted to appear in the absence of an order." That rule further directs that "[t]he client ... be notified in advance of the proposed substitution and ... consent in writing to the substitution[,] [which] written consent shall be filed with the court." The record does not reflect that a motion was ever filed requesting leave by the second attorney to substitute for the former wife's first attorney, or that the former wife consented in writing to such a substitution. Moreover, no order was ever entered permitting substitution. Accordingly, based upon the clear language of rule 2.060(h), we conclude that the trial court correctly determined that the motion for rehearing, filed by the second attorney, was a nullity. In the absence of a timely and proper motion for rehearing, the trial court lost jurisdiction to reconsider the merits of its original May 16 order ten days after that order had been filed. Fla.R.Civ.P. 1.530(b). See, e.g., Shelby Mut. Ins. Co. v. Pearson, 236 So.2d 1 (Fla.1970) (); Meyer v. Meyer, 525 So.2d 462 (Fla. 4th DCA) (), review denied, 536 So.2d 244 (Fla.1988).
The former wife argues that, even if the trial court...
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