Churchville v. Ocean Grove RV Sales, Inc., 1D04-0417.
| Decision Date | 18 June 2004 |
| Docket Number | No. 1D04-0417.,1D04-0417. |
| Citation | 876 So.2d 649 |
| Parties | Lewis P. CHURCHVILLE and Mary Lavern Churchville, Appellants, v. OCEAN GROVE R.V. SALES, INC.; Century American Casualty Company; Damon Corporation; Reliance Insurance Company; General Motors Corporation, Appellees. |
| Court | Florida District Court of Appeals |
N. Albert Bacharach, Jr. and Chigozie H. Offor, Gainesville, for Appellants.
W. Scott Powell of Roth, Powell, Pearson, & Hosley, P. A., Winter Park; Charles P. Mitchell of Rumberger, Kirk and Caldwell, P.A., Orlando; Geoffrey B. Dobson of Dobson & Christensen, St. Augustine; and Melissa Dawn Munroe, Orlando, for Appellees.
Having considered "Appellee Damon Corporation's Motion to Dismiss Appeal," which included a motion for sanctions pursuant to section 57.105, Florida Statutes, as well as "Appellants' Response to Appellee Damon Corporation's Motion to Dismiss," we find that the Court lacks jurisdiction to review the "Ex Parte Final Judgment," entered on March 22, 2004, and that the appellee is entitled to attorney's fees incurred subsequent to the appellants' March 24, 2004 Amended Notice of Appeal.
The appellants initially brought this appeal to review a post-judgment order on a motion for relief from judgment. However, the basis for asserting the Court's jurisdiction was unclear and on February 11, 2004, the Court issued an order to show cause to determine the proper avenue for review. The appellants responded to this order on February 26, 2004.
In the appellants' response, they avoided the jurisdictional question presented in the show cause order and instead asserted that the order underlying their motion for relief, titled "Final Order Granting Defendants Damon/Reliance's 9/8/03 Motion to Dismiss for Lack of Prosecution," entered on October 28, 2003, was not a final appealable order. The appellants further failed to comply with the Court's order which required the appellants to attach copies of any pleading or document referenced in the response. However, the appellants suggested that the jurisdictional deficiency in the previous order, i.e., an order that merely grants a motion to dismiss without more is not final, could be corrected by obtaining a final order and the appeal could proceed from that order. Therefore, the appellants requested time to obtain such a final order.
On March 9, 2004, the Court again ordered the appellants to respond to the Court's concerns regarding its jurisdiction or to file an amended notice of appeal correctly identifying the final order on appeal. The appellants subsequently obtained an "Ex Parte Final Judgment," entered on March 22, 2004, which entered judgment on "Damon Corporation/Reliance Insurance Company's 9/8/03 Motion To Dismiss Pursuant to Fla. R. Civ. P. 1.420(e)." On March 24, 2004, the appellants filed an amended notice of appeal identifying this final judgment as the order on appeal.
On March 31, the appellee, Damon Corporation, filed a motion to dismiss, which also sought sanctions pursuant to Section 57.105, Florida Statutes. The appellee argued that in an attempt to circumvent an expired appeal deadline, the appellants deliberately failed to comply with the Court's orders to show cause and proceeded instead down an improper path with the trial court. The appellee attached to this motion, inter alia, a conformed copy of the "Final Order Granting Defendants Damon/Reliance's 9/8/03 Motion to Dismiss for Lack of Prosecution," entered on October 28, 2003. The appellants filed a response in which they assert that the October 28, 2003 order was not a final appealable order, but that the March 22, 2004 order "that contained the exact language as the October 28, 2003 Order" was final and appealable.
An amendment or modification of an order or judgment in an immaterial, insubstantial way does not restart the clock to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971)
; Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003). Even where the modification is substantial or material, but is entirely in the appellant's favor, the appellant may not rely on this order to obtain an appeal of the issues decided adversely to the appellant in the earlier Final Judgment. Beal Bank, S.S.B. Inc. v. Sherwin, ...
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Caldwell v. Wal-Mart Stores, Inc.
...rendition of an amended order does not extend the time for seeking appellate review of the original. See Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649 (Fla. 1st DCA 2004); DeGale v. Krongold, Bass & Todd, 773 So.2d 630 (Fla. 3d DCA 2000). It is true that a party may appeal an a......
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Demming v. Demming, 1D17–401
...later order is not a classic "republished" order, because it is different from the earlier order. See Churchville v. Ocean Grove R.V. Sales, Inc. , 876 So.2d 649, 651 (Fla. 1st DCA 2004) (holding republication of an earlier order does not open a new window for appeal); see also Hollifield v......
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McGrath v. Martin, 3D15-1821.
...for rehearing, reconsideration and clarification, which the court denied and this appeal followed."); Churchville v. Oc e an Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004) ("The ‘Final Order Granting Defendant's Damon/Reliance's 9/8/03 Motion to Dismiss for Lack of Prosecuti......
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Jacobs v. State
...of the original order granting Jacobs rule 3.800 relief and, therefore, was likely untimely. See Churchville v. Ocean Grove R.V. Sales, Inc. , 876 So. 2d 649, 651 (Fla. 1st DCA 2004) ("An amendment or modification of an order or judgment in an immaterial, insubstantial way does not restart ......