Home News Pub. Co. v. U-M Pub., Inc., U-M

• Decision Date: 25 February 1971
• Docket Number: No. O--333,U-M,O--333
• Citation: 246 So.2d 117
• Parties: HOME NEWS PUBLISHING COMPANY, a corporation, etc., et al., Appellants, v.PUBLISHING, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 117

246 So.2d 117

HOME NEWS PUBLISHING COMPANY, a corporation, etc., et al., Appellants, v. U-M PUBLISHING, INC., a corporation, Appellee.

No. O--333.

District Court of Appeal of Florida, First District.

Feb. 25, 1971.

Horton & Schwartz, and Anthony F. Barone, Miami, for appellants.

Glickstein, Crenshaw, Glickstein, Fay & Allen, Jacksonville, for appellee.

ON MOTION TO DISMISS

WIGGINTON, Acting Chief Judge.

Appellants, who were defendants in the trial court in this action at law for breach of contract, seek review by interlocutory appeal of two interlocutory orders rendered by the trial court.

To the complaint filed against them appellants filed their motion to dismiss the action on the ground of improper venue, which motion was denied by order rendered October 28, 1970. Instead of seeking timely review of this order by interlocutory appeal as provided by Rule 4.2, Florida Appellate Rules, 32 F.S.A., appellants filed in the cause what they characterized as a motion for rehearing on their motion to dismiss the action and, in the alternative, motion to transfer venue of the action to Dade County under the doctrine of forum non conveniens as authorized by statute. ¹ Appellants' motion was denied by order rendered on November 27, 1970. It is from the order of denial that this appeal is taken by notice of interlocutory appeal filed in the trial court on December 11, 1970. The case is now before this court on appellee's motion to dismiss the appeal for want of jurisdiction.

With regard to the trial court's order denying appellants' motion to dismiss the action on the ground of improper venue which was rendered on October 28, 1970, the rules of appellate procedure require that review of such order by interlocutory appeal be taken within thirty days from the rendition thereof. ² Since the notice of appeal to review that order denying appellants' motion to dismiss was not filed in the trial court until December 11, 1970, more than thirty days after the order was rendered, the appeal is not timely taken and must be dismissed unless the time for filing the notice of appeal was tolled by the filing of appellants' motion for rehearing.

The rule relating to motions for rehearing in the trial courts of this state is Rule 1.530, Rules of Civil Procedure, 31 F.S.A. This rule provides that: 'On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment. * * * A motion for * * * rehearing shall be served not later than 10 days after the * * * entry of judgment in a non-jury action. * * *' A literal interpretation of the rule would seem to indicate that a motion for rehearing may be directed only to final judgments rendered by a court, since that is the only judicial action specified in the rule authorizing the filing of such a motion. If the rule-making authority had intended to authorize the filing of a motion for rehearing directed to an interlocutory order, it could easily have so provided. Unless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper and would not toll the rendition date of the order or the running of the time for seeking appellate review of the order complained about. ³

In the case of In Re Estate of Lee, ⁴ the Supreme Court held that since the judgment of a circuit court sitting in its appellate capacity served as its mandate, no provision was made by law for a petition for rehearing to be directed to such judgment. Based upon this conclusion it held that the filing of such unauthorized petition for rehearing did not toll the running of the time for seeking review of the circuit court's judgment, and the appeal taken out of time from the date the judgment was rendered was dismissed.

In Albert v. Carey ⁵ the Third District Court of Appeal held that the rules of procedure did not authorize the filing of a petition for rehearing to a summary judgment and, therefore, the time for seeking appellate review of such judgment commenced to run from the date of its rendition and not from the date on which the petition for rehearing was denied. This decision was based upon the prior decision of LaJoie v. General Motors Acceptance...