Cape Royal Realty, Inc. v. Kroll

• Decision Date: 18 January 2002
• Docket Number: No. 5D01-732.,5D01-732.
• Citation: 804 So.2d 605
• Parties: CAPE ROYAL REALTY, INC., Appellant, v. Kathleen J. KROLL, Appellee.
• Court: Florida District Court of Appeals

804 So.2d 605

CAPE ROYAL REALTY, INC., Appellant, v. Kathleen J. KROLL, Appellee.

No. 5D01-732.

District Court of Appeal of Florida, Fifth District.

January 18, 2002.

Marybeth McDonald of McDonald & Rodgers, P.A., Orlando and Elizabeth C. Wheeler of Wheeler & Wilkinson, LLP, Orlando, for Appellant.

Charles R. Stack and Michael W. Dwyer of Hugh, Stack, Palahach & Cruanes, Melbourne, for Appellee.

LAMBERT, BRIAN D., Associate Judge.

The issue on appeal is whether this court has jurisdiction to review a non-final order granting Kathleen J. Kroll's motion to set aside the final order of dismissal entered for lack of prosecution.

More than a year after the last record activity in this case, Cape Royal Realty, Inc., as the defendant below in this negligence action, filed a motion to dismiss for lack of prosecution. Fla. R. Civ. P. 1.420(e). On January 18, 2001, the trial court held a hearing on the matter and subsequently entered its final order dismissing Kroll's case for failure to prosecute.

Kroll then retained counsel who, seven days later, on January 25, 2001, filed a notice of appearance as well as a motion to set aside the order of dismissal for lack of prosecution. The trial court entered a new order setting aside its final order of dismissal after a hearing was held on the matter. This subsequent order is the subject of this appeal.

A denial of a motion to dismiss for lack of prosecution is a non-appealable non-final order. See Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980); Southwinds Riding Academy v. Schneider, 507 So.2d 782 (Fla. 3d DCA 1987). Similarly, an order setting aside an order of dismissal for failure to prosecute is also a non-appealable, non-final order under Florida Rule of Appellate Procedure 9.130(a)(4). See Universal Casualty Insurance Co. v. Rodriguez, 548 So.2d 674 (Fla. 3d DCA 1989); Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador, 530 So.2d 971 (Fla. 3d DCA 1988). Defendant asserts that this court has jurisdiction pursuant to Rule 9.130(a)(5), Florida Rules of Appellate Procedure because the trial court's reinstatement of the action was done pursuant to Florida Rules of Civil Procedure 1.540. See Allstate Insurance Co. v. Bucelo, 650 So.2d 1128 (Fla. 3d DCA 1995). In response, Kroll asserts that her motion was, in essence, a Rule 1.530 motion for rehearing, and that this court lacks jurisdiction to review the order on appeal.

We find that Kroll's motion to set aside the order of dismissal for lack of prosecution, though not designated by her as either a Rule 1.530 motion for rehearing or a Rule 1.540 motion for relief from judgment, due to mistake, inadvertence, surprise or excusable neglect, having been filed within seven days of the final order of dismissal, was intended to operate as a Rule 1.530 motion for rehearing. Upon the timely filing of a petition for rehearing (as was done in the instant case), the rendition of the final order is suspended and the trial court has the power and authority to completely alter or change its final judgment or order. E.g., Pruitt v. Brock, 437 So.2d 768 (Fla. 1st DCA 1983); Fugazy Travel Bureau, Inc. v. State By Dickinson, 188 So.2d 842, 844 (Fla. 4th DCA 1966); see also St. Cloud Utilities v. Moore, 410 So.2d 973, 974 n. 3 (Fla. 5th DCA 1982). A Rule 1.540 motion is a request by a party to provide relief after the trial court has lost jurisdiction over a case. In this case, Kroll's motion was filed while the trial court still had jurisdiction to completely change its final order of dismissal. Cf. Allstate Insurance Co. v. Bucelo, supra, (motion to reinstate lawsuit filed 117 days after dismissal for lack of prosecution treated as a Rule 1.540 motion). Kroll's motion to set aside the order of dismissal for lack of prosecution was, procedurally, a timely filed motion for rehearing. Therefore, the order on appeal, which effectively reinstated the action, is analogous to the trial court having initially denied the motion to dismiss for lack of prosecution. We agree with our sister court that it would be anomalous if we were to allow this appeal simply because the decision to deny the motion to dismiss was made after rehearing when an appeal following an initial denial of the motion to dismiss for lack of prosecution would not be allowed. Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador, 530 So.2d at 973. Therefore, we dismiss this appeal for lack of jurisdiction.

APPEAL DISMISSED.

SHARP, W., J., concurs.

HARRIS, J., dissents with opinion.

HARRIS, J., dissenting.

I respectfully disagree that a motion under rule 1.540 cannot be filed within 10 days of the challenged judgment. A motion for rehearing under rule 1.530, Florida Rules of Civil Procedure, must be filed within ten days from the filing of the judgment. A motion for relief from judgment under rule 1.540, Florida Rules of Civil Procedure, may be brought "within a reasonable time" not to exceed one year from the date of the judgment. Thus, a motion filed within ten days of the filing of a judgment may be either a motion for rehearing or a motion for relief from judgment depending on the nature of the request.

The nature of the motion filed herein, whether it is a request for a rehearing or a request for relief from judgment, is critical in resolving the dispute before us. The denial of a motion for rehearing, as indicated by the majority, is an unappealable order whereas a motion granting relief under rule 1.540 is appealable. The majority has found that the motion filed herein, because it was filed within 10 days of the contested judgment, is a motion for rehearing and therefore has dismissed the appeal, leaving the argument on the merits for a later date. I construe the motion as one seeking relief from a judgment dismissing the action for failure to prosecute which, although properly entered because plaintiff failed to show good cause at least five days before the hearing as to why the action was so long ignored, should be set aside. The court should ignore the fiveday requirement because of exceptional circumstances. Therefore, I find, consistent with the position of both the plaintiff and the defendant herein, that this case is ripe for a ruling on the merits.

The reasons that compel me to conclude that the motion under review was not a motion for rehearing but rather a motion for relief from judgment are:

1. The motion is entitled "Motion to Set Aside Order of Dismissal." Although the title of the motion is not dispositive, its purpose is. The purpose of a motion for rehearing is to give the trial court an opportunity to consider matters which it overlooked or failed to consider or to correct any error if it becomes convinced that it erred. See Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA 1986). By its terms, this motion seeks relief from the consequences of the order of dismissal because of inadequate representation and does not allege that the court erred in any respect or overlooked anything in its previous ruling. The grounds given were: (a) plaintiff had counsel¹ which she supposed was vigorously representing her, (b)when she learned of that counsel's death she immediately obtained substitute counsel who agreed to represent her, but (c) that lawyer failed to notify her or the court that he would not attend the hearing on the motion to dismiss because of a conflict in his schedule, and (d) that she could not anticipate the death of her counsel (who in any event had not filed a notice of appearance and who had himself filed no papers in the case for over a year) nor could she anticipate that her substitute attorney (also not of record) would not attend the hearing (or even file a response to the motion to dismiss).

2. A motion simply for a rehearing without first avoiding the consequence of failing to meet the five-day rule requirement would have been useless because the trial court has no discretion if the rule is applicable and is not met. Because there was an inadequate basis for not applying the rule at the initial hearing, the court did not err in granting the dismissal. The supreme court has told us that the requirement to file a response showing good cause at least five days before the hearing on the motion to dismiss mandates dismissal. See Metropolitan Dade County v. Hall, 784 So.2d 1087 (Fla.2001). Plaintiff admits that no such response was filed. The trial court which is mandated to enforce this five-day requirement at the initial...