Daytona Migi Corp. v. Daytona Automotive Fiberglass Inc.

• Decision Date: 02 June 1982
• Docket Number: No. 82-304,82-304
• Citation: 417 So.2d 272
• Court: Florida District Court of Appeals
• Parties: DAYTONA MIGI CORPORATION, etc., Appellant, v. DAYTONA AUTOMOTIVE FIBERGLASS INC., etc., Appellee.

Page 272

417 So.2d 272

DAYTONA MIGI CORPORATION, etc., Appellant, v. DAYTONA AUTOMOTIVE FIBERGLASS INC., etc., Appellee.

No. 82-304.

District Court of Appeal of Florida,

Fifth District.

June 2, 1982.

Rehearing Denied July 27, 1982.

Henry C. Anderson, pro se.

J. Doyle Tumbleson of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellee.

ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

Following the remand of this case to the trial court after an earlier appeal, ¹ the trial court, in compliance with the mandate of this court, reconsidered the matter of damages and on December 16, 1981, entered a final judgment from which appellant takes this appeal.

On January 14, 1982, the trial court entered an order denying appellant's motion for rehearing. ² This order also denied appellant's motion for suggestion of disqualification, and taxed costs in favor of appellee. On January 29, 1982, the trial court entered an amended order, identical in every respect to the order of January 14, 1982, except that paragraph 2 read: "Plaintiff's motion for rehearing is denied." Appellee moves to dismiss the appeal on two grounds: (1) that the notice of appeal was untimely, in that it was filed more than thirty days from rendition of the final judgment appealed from; and (2) even if timely, a notice of appeal is ineffective when signed only by an officer of a corporate appellant, not an attorney, and no attorney has signed the notice. We conclude that for either reason, the appeal should be dismissed.

Appellant is correct that the notice of appeal was timely if the time for filing began to run on January 29, 1982, when the amended order was entered. ³ However, the amendment or modification of an order in an immaterial way does not delay the time for seeking review. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971). The time for taking an appeal is tolled only if the second order changes matters of substance or resolves a genuine ambiguity. B. G. Leasing, Inc. v. Heider, 372 So.2d 184 (Fla. 3d DCA 1979). The test is whether the court in the second order has disturbed or revised legal rights and obligations which had been settled with finality in the original order. Id; cf. Salinger v. Salinger, 100 So.2d 393 (Fla.1958) [trial court order amending final decree, per stipulation of the parties, to provide for a different effective date did not suspend rendition of the original order and postpone the time for taking appeal].

We note no substantive change between the order of January 14 and the amended order of January 29. In both, the petition for rehearing was denied. Neither does appellant point to any such change. Thus, the amended order did not extend the time for filing an appeal and final judgment was "rendered" when the motion for rehearing was disposed of by the order of January 14. The notice of appeal filed March 1, 1982, was too late.

Because the notice of appeal was signed by a corporate officer who is not an attorney, the notice of appeal would be dismissed in any event. A corporation must be represented in court by an attorney and may not be represented by a corporate officer. Quinn v. Housing Authority of Orlando, 385 So.2d 1167 (Fla. 5th DCA 1980); Southeastern Associates, Inc. v. First Georgia Bank, 362 So.2d 967 ...