Marsh & McLennan, Inc. v. Aerolineas Nacionales Del Ecuador, Nos. 87-2646

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; DANIEL S. PEARSON; SCHWARTZ; FERGUSON
• Citation: 13 Fla. L. Weekly 1895,530 So.2d 971
• Decision Date: 09 August 1988
• Docket Number: Nos. 87-2646,87-2693
• Parties: 13 Fla. L. Weekly 1895 MARSH & McLENNAN, INC. and Certain Underwriters at Lloyds, Appellants, v. AEROLINEAS NACIONALES DEL ECUADOR, Appellee.

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530 So.2d 971 13 Fla. L. Weekly 1895 MARSH & McLENNAN, INC. and Certain Underwriters at Lloyds, Appellants,
v.
AEROLINEAS NACIONALES DEL ECUADOR, Appellee. Nos. 87-2646, 87-2693. District Court of Appeal of Florida,
Third District. Aug. 9, 1988.
Rehearing Denied Sept. 29, 1988.

Blackwell, Walker, Fascell & Hoehl and Leonel R. Plasencia and Douglas H. Stein, Steel Hector & Davis and Brian J. Stack, Miami, for appellants.

Kelley, Drye & Warren including Smathers & Thompson and Henry H. Bolz, III, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON HEARING EN BANC OF MOTION TO DISMISS APPEALS

DANIEL S. PEARSON, Judge.

The appellee, Aerolineas Nacionales Del Ecuador, S.A., claiming that we lack jurisdiction, has moved to dismiss these consolidated appeals from the trial court's order on rehearing reinstating a previously dismissed action. The appellants, Marsh & McLennan and Certain Underwriters at Lloyds, have responded that their appeals are from a non-final order entered after a final order and are thus authorized by Florida

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Rule of Appellate Procedure 9.130(a)(4). Although aware that this court in Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192 (Fla. 3d DCA 1987), held an identical order to be appealable, the panel assigned to hear this case ¹ was of the view that the order sought to be reviewed was not appealable. On motion of the panel, this nascent conflict was brought to the attention of the entire court, which determined to consider the matter en banc. The court, sitting en banc, now holds that the order is not appealable and overrules the contrary holding in Pan American.

The case began when Aerolineas sued Marsh & McLennan, Certain Underwriters at Lloyds, and St. Paul Fire & Marine Insurance Company. Because the only record activity during a one-year period was Aerolineas' voluntary dismissal of one of the defendants, St. Paul, the other defendants moved to dismiss the suit for lack of prosecution. The trial court dismissed the suit, and Aerolineas timely moved for rehearing. On rehearing, the trial court vacated the dismissal and reinstated the action. It is this latter order which the appellants seek to have reviewed and which they claim is appealable under Florida Rule of Appellate Procedure 9.130(a)(4).

Understandably, the appellants rely on Pan American Bank, N.A. v. World Purchasing, Inc., 507 So.2d 1192, in which a panel of this court characterized the trial court's dismissal for lack of prosecution as a "final order," the reinstatement of the action as a "non-final order," and the order of reinstatement as appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) as a "non-final order[ ] entered after final order." Because the timely motion for rehearing suspended rendition of the earlier order dismissing the action--an occurrence which the decision in Pan American overlooked--we now conclude based on the express language of Rule 9.130(a)(4) that the reinstatement order was not appealable. ²

Florida Rule of Appellate Procedure 9.130(a)(4) provides:

"Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule."

It is the opening declaration of the rule--"Non-final orders entered after final order on motions which suspend rendition are not reviewable"--which controls this case. ³ This court has construed this phrase to mean that there are no appeals from "non-final orders, entered after final order, which suspend rendition." Grafman v. Grafman, 488 So.2d 115, 117 n. 2 (Fla. 3d DCA 1986). While this is certainly true, it is perhaps more accurate to say that the non-final order, rather than suspending rendition, ends all possibility that the earlier order will be rendered. Thus, it is the timely motion that suspends rendition, and the phrase should be read to mean that there are no appeals from "non-final orders entered on motions which suspend rendition." However, under either reading, the

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result is the same: the rendition of the final order--here, the dismissal--can be permanently suspended only by a non-final order--the reinstatement of the dismissed action. ⁴

It is clear, of course, that rendition--defined as "the filing of a signed, written order with the clerk of the lower court," Fla.R.App.P. 9.020(g)--is suspended by a timely motion for rehearing authorized by the Rules of Civil Procedure. See Fla.R.App.P. 9.020(g) ("Where there has been filed in the lower tribunal an authorized and timely motion for ... rehearing, ... the order shall not be deemed rendered until disposition thereof."); Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, 511 So.2d 293 (Fla.1987); Casto v. Casto, 404 So.2d 1046 (Fla.1981); Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); Palladeno v. Oesterle, 345 So.2d 382 (Fla. 3d DCA 1977). The effect of the rehearing rule "is to put the world on notice that at any time within ten days after entry of a decree by a court of equity in Florida the court may, on petition for rehearing or on its own initiative, order a rehearing or enter a new or amended decree. Any person that acts in reliance upon such a decree within that time does so at his own peril." Fugazy Travel Bureau, Inc. v. State by Dickinson, 188 So.2d 842, 844 (Fla. 4th DCA 1966). See also State ex rel. Owens v. Pearson, 156 So.2d...