Martini v. Young
| Decision Date | 18 November 2005 |
| Docket Number | No. 5D03-1864.,5D03-1864. |
| Citation | 921 So.2d 647 |
| Parties | John MARTINI and Kimberly Martini, Appellants, v. Daniel D. YOUNG and Sally Sue Young, et al., Appellees. |
| Court | Florida District Court of Appeals |
Steven R. Andrews and W. Scott Newbern of Andrews Moye, LLC, Tallahassee, for Appellants.
Joshua D. Lerner and Scott M. Sarason of Rumberger, Kirk & Caldwell, Miami, for Appellee Tortoise Island Realty, Inc., n/k/a Island Realty of Brevard, Inc.
Thomas C. Smith of Hassell, Moorhead & Carroll, Daytona Beach, for Appellee, Daniel and Sally Young.
Patrick Patrissi of Ritter Chusid, Bivona & Cohen, LLP, Boca Raton, for Appellee, Union Planters PMAC.
John and Kimberly Martini challenge the trial court's dismissal with prejudice of their amended complaint, which alleged breach of a duty to disclose defects in the home they purchased from Daniel D. and Sally Sue Young and asserted claims for rescission, breach of contract, misrepresentation, and fraud. We lack jurisdiction and dismiss the appeal because the notice of appeal was untimely filed.
On 14 February 2003, the trial court entered an order, amended on 21 February 2003, dismissing the four causes of action in the amended complaint with prejudice. Defendant Toni L. Pastermack, P.A., the attorney who represented the Youngs, filed and served a motion to amend the final order to conform to the court's oral pronouncement. On 22 April 2003, the Martinis served a motion for reconsideration on the parties which was not filed with the clerk of the court until 12 May 2003. On 28 May 2003, the trial court entered its final order on motions to dismiss and order denying the Martinis' motion for reconsideration. The Martinis filed a notice of appeal on 29 May 2003, appealing the 28 May order.
The issue here is when the notice of appeal should have been filed. Florida Rule of Appellate Procedure 9.020(h) suspends rendition of a final order that is the subject of an authorized and timely motion for rehearing until the filing of a signed, written order disposing of all such motions. A notice of appeal filed within thirty days of such an order denying rehearing vests this court with jurisdiction. In this case, however, the Martinis' filed an untimely motion for reconsideration that did not toll the time for appealing the trial court's order; thus, their filing of a notice of appeal more than thirty days after the rendition of the order to be reviewed is fatal to their right to appeal. See Fla. R.App. P. 9.110(b); Jones v. Jones, 845 So.2d 1012, 1013 (Fla. 5th DCA 2003); Harris v. Harris, 670 So.2d 1187, 1188 (Fla. 5th DCA 1996); Dominguez v. Barakat, 609 So.2d 664, 664-65 (Fla. 3d DCA 1992).
The final order was entered 14 February 2003. For this reason, the appeal filed 28 May 2003, only after the untimely motion for rehearing had been denied 12 May 2003, was taken more than thirty days after the unsuspended rendition of the final judgment. The appeal is therefore dismissed.
DISMISSED.
I have concurred in the conclusion that we lack jurisdiction because the February 14, 2003, order was a final order. There was no timely motion for rehearing or amendment by any party. Therefore, the order became final on February 24, 2003, and the trial court lost the power to amend or vacate it. See, e.g., Maresca v. Olivo, 819 So.2d 855 (Fla. 5th DCA 2002); Bortz v. Bortz, 675 So.2d 622 (Fla. 1st DCA 1996); Shelby Mutual Ins. Co. v. Pearson, 236 So.2d 1 (Fla.1970). The only remaining authority potentially available to the trial court appears to be Florida Rule of Civil Procedure 1.540(a), applicable to "clerical mistakes in judgments . . . and errors therein arising from oversight or omissions. . . ." As the language quoted by Judge Sharp reflects, however, it appears that the reason for the trial court's entry of the May 12 order was not to correct a "clerical mistake" or, indeed, any mistake in the order itself, but to attempt to remedy the parties' confusion about deadlines for filing motions for rehearing and for taking an appeal that the trial judge believed arose because he had issued two successive orders, the first of which was a final order but was not denominated a "final order." By the terms of the rule, however, such a "correction" does not restart the time for taking an appeal; nor does it authorize vacating the order entirely. Further, it is firmly established that trial courts cannot, directly or indirectly, extend the time for a party to take an appeal, nor may it amend its judgment for this purpose. See Kippy Corp. v. Colburn, 177 So.2d 193, 196-97 (Fla.1965), and cases cited therein; Maxfly Aviation, Inc. v. Capital Airlines, Ltd., 843 So.2d 973 (Fla. 4th DCA 2003).
Although this case is an aged one for this court, I find it necessary, after reviewing the record, to dissent and write an opinion. This is not a case which should be dismissed for lack of jurisdiction, and on the merits it should be reversed.
Jurisdiction.
John and Kimberly Martini (the Martinis) filed a complaint on December 18, 2001 and an amended complaint on February 5, 2002, after the home they purchased from Daniel and Sally Young (the Youngs) contained serious latent defects which could not be repaired and which rendered the home uninhabitable.1 In addition to the Youngs, Tortoise Island Realty, Inc., (Tortoise Island),2 Toni L. Pastermack, P.A. (Pastermack)3 and Union Planters PMAC (Union Planters),4 were also sued.
The amended complaint alleged four causes of action: recision of contract, breach of contract, misrepresentation, and fraud. On March 18, 2002, Union Planters filed a motion to dismiss, which was followed by motions to dismiss from Tortoise Island April 11, 2002; Pastermack April 29, 2002, and the Youngs July 24, 2002.
On September 24, 2002, the court entered an agreed order granting Pastermack's motion to dismiss count I, and gave the Martinis 10 days to amend. On October 4, 2002, the court entered two agreed orders granting the Youngs motions to dismiss, and gave the Martinis ten days to amend. Finally, on December 12, 2002, the court entered an order which dismissed the amended complaint without prejudice and gave the Martinis 20 days to amend. The Martinis' attorney failed to amend on any of these occasions.
After the twenty-day period to file a second amended complaint lapsed, the Youngs and Union Planters filed an amended motion to dismiss and Pastermack filed a motion to dismiss with prejudice. A hearing on these motions was held on February 4, 2003, which resulted in an order entered February 14, 2003.
The February 14, 2003 order was prepared by counsel for the Youngs, Smith, at the direction of the trial court, and the order was based upon the trial court's oral pronouncement at the February 4, 2003 hearing. Smith did not circulate the proposed order to counsel for the other parties due to time constraints placed upon him by the trial judge. The judge executed the order and thereafter, counsel for Pastermack requested that minor changes be made in that order. Smith agreed, made the changes, titled the second proposed order "final," and submitted it to the trial court. On February 21, 2003, the court executed the second proposed "final" order which dismissed all causes of action in the amended complaint with prejudice, and held that the foreclosure action was not dismissed.
The February 21, 2003 order was a proper final order pursuant to Florida Rule of Civ. Proc. 1.540(a), which authorizes a court to correct errors "arising from oversight or omission . . . at any time on its own initiative." The "Authors Comment — 1967," notes that this subsection "includes only errors or mistakes arising from accidental slip or omission" and that it does not include errors or mistakes "in substance of what is decided in the judgment or order." See also Bortz v. Bortz, 675 So.2d 622 (Fla. 1st DCA 1996)(Rule 1.540(a) not designed to permit substantive changes in final orders).
Rule 1.540(a) is specifically directed at the type of clerical corrections made by the trial court here, as a result of Smith's failure to circulate the order. See, e.g., Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla. 1979)(trial counsel's failure to mail correct copy of appealable order constituted clerical mistake within Rule 1.540(a)); Ashley v. State, 845 So.2d 1008, 1009 n. 1 (Fla. 5th DCA 2003); Gordon v. Green, 382 So.2d 1344 (Fla. 5th DCA 1980); Smith v. Garst, 289 So.2d 774 (Fla. 2d DCA 1974).
The February 21, 2003 "final" order was thus a final order authorized by rule 1.540(a). See Pennington III v. Waldheim, M.D., 695 So.2d 1269, 1271 (Fla. 5th DCA 1997); Howard v. McAuley, 436 So.2d 392 (Fla. 2d DCA 1983). Florida Rule of Appellate Procedure 9.130(a)(5) authorizes review of "specified final orders," which are "filed under Florida Rule of Civil Procedure 1.540." See also Williams v. Roundtree, 464 So.2d 1293 (Fla. 1st DCA 1985); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971)(trial court has authority to re-date earlier final judgment on which time to appeal had expired, pursuant to Rule 1.540(b)).
After the February 21, 2003 final order was filed, Pastermack brought a timely motion to amend it pursuant to Florida Rule of Civil Procedure 1.530(g). Consequently, on May 12, 2003, the court entered an amended order which stated that "after considering the argument of counsel made by all parties to the case, the Court finds that its orders entered on February 14, 2003 and February 21, 2003 may possibly have caused unnecessary confusion of the records . . . and should be set aside." The order then specifically states:
The prior orders in this case dated February 14, 2003, and February 21, 2003, are hereby vacated and set aside, and this order shall...
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...notice of appeal runs from the date of the judgment, not the date of the order disposing of the motion. For example, in Martini v. Young, 921 So. 2d 647 (Fla. 5th DCA 2005), the appellate court dismissed an appeal for lack of jurisdiction when the appellant filed an authorized motion for re......