Palledeno v. Oesterle, 77--353
| Decision Date | 26 April 1977 |
| Docket Number | No. 77--353,77--353 |
| Citation | 345 So.2d 382 |
| Parties | Donald J. PALLADENO, Appellant, v. Clara OESTERLE, Candidate et al., Appellees. |
| Court | Florida District Court of Appeals |
Richard F. Hayes, Coral Gables, for appellant.
Canner & Chait, Miami, Stuart L. Simon, County Atty., and Alan J. Kan, Asst. County Atty., for appellees.
Before PEARSON, HAVERFIELD and HUBBART, JJ.
This is an action challenging the method by which members of the Board of County Commissioners of Dade County were recently elected. The trial court granted the motion to dismiss the cause with prejudice and the plaintiff appealed. The defendants move to dismiss the appeal as untimely.
The issue presented for review is whether an appeal is timely filed where: (1) the order appealed from dismissing a complaint with prejudice was signed on December 21, 1976, and recorded on December 22, 1976; (2) a motion for rehearing on the order appealed from was filed with the court and mailed to the opposing party on January 3, 1977, but was not received by counsel for the opposing party until January 4, 1977; and (3) the notice of appeal was filed within thirty (30) days from the denial of the motion for rehearing. We hold that under these circumstances the appeal was timely filed and deny the motion to dismiss the appeal.
The plaintiff, Donald J. Palladeno, is an unsuccessful candidate for the Board of County Commissioners of Dade County in a recent county-wide election. He filed this action against his opponent and successful candidate, Clara Oesterle, along with the members of the Dade County Canvassing Board, challenging the method by which candidates in said election were elected.
December 21, 1976, the trial court signed an order dismissing the complaint with prejudice, which order was recorded by the clerk the next day on December 22, 1976. On January 3, 1977, the plaintiff filed with the clerk and mailed to the defendants a motion for rehearing on the order dismissing the complaint with prejudice, which motion was actually received by defense counsel the next day on January 4, 1977.
On January 18, 1977, the trial court denied the plaintiff's motion for rehearing. On February 14, 1977, the plaintiff filed his notice of appeal from the order recorded December 22, 1976. The defendants move to dismiss the appeal as untimely.
Fla.App. Rule 3.2(b) provides that an appeal must be taken within thirty (30) days from the 'rendition' of the final order appealed from. Fla.App. Rule 1.3 defines 'rendition' of an order and further provides:
'Where there has been filed in the lower court a timely and proper motion or petition for a new trial, for a rehearing, or other timely post-trial motion or petition permitted by the Rules, the decision, judgment, order, or decree shall not be deemed rendered until such motion or petition is disposed of.'
In the instant case, the plaintiff filed a motion for rehearing on an order dismissing his complaint with prejudice, which is a proper motion under Fla.R.Civ.P. 1.530 directed to an otherwise final appealable judgment. Snyder v. Gulf American Corp., 224 So.2d 405 (Fla.2d DCA 1969). This motion, if properly and timely served on the adverse...
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...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 b......
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Dibble v. Dibble, 79-1622
...state that the time for serving a petition for rehearing runs from the date of recording, rather than filing. E. g., Palladeno v. Oesterle, 345 So.2d 382 (Fla. 3d DCA 1977); Borrego v. Kessler, 183 So.2d 695 (Fla. 2d DCA 1966); Bannister v. Allen, 127 So.2d 907 (Fla. 3d DCA 1961). 1 Perhaps......
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Casto v. Casto
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Casto v. Casto, s. 79-2008
...were synonymous (insofar as Rule 1.530(b) is concerned) and meant the date the judgment was recorded. See, e. g., Palladeno v. Oesterle, 345 So.2d 382 (Fla.3d DCA 1977). However, as amended March 1, 1978, "rendition" means the date the signed written judgment is filed with the clerk. So the......