Potucek v. Smeja
| Decision Date | 06 October 1982 |
| Docket Number | No. 82-1585,82-1585 |
| Parties | Frank POTUCEK, Appellant, v. Jill E. SMEJA, Appellee. |
| Court | Florida District Court of Appeals |
The timeliness of this appeal depends upon whether a motion for rehearing tolls the time for taking an appeal from an order granting relief from a judgment pursuant to Florida Rule of Civil Procedure 1.540(b).
Appellant (Potucek) obtained a default judgment against appellee (Smeja). Thereafter, following the dictates of rule 1.500(d), Smeja filed a motion to set aside the judgment pursuant to rule 1.540(b). After the taking of testimony, the court granted the motion and set aside the final judgment by order dated May 11, 1982. While this ruling was predicated upon a deficiency in the service of process upon Smeja, at the hearing her counsel agreed to accept service; so, the court allowed twenty days for the filing of an answer. Potucek served a motion for rehearing on May 20, 1982, which the court denied on June 9, 1982. Potucek filed his notice of appeal on July 6, 1982. If the motion for rehearing tolled the appeal time, the appeal was timely; otherwise, Potucek was too late.
Appeals from both final and nonfinal orders must be taken within thirty days of the rendition of the order to be reviewed. Fla.R.App.P. 9.110(b) and 9.130(b). Florida Rule of Appellate Procedure 9.020(g) defines rendition as follows:
Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.
An unauthorized motion for rehearing does not toll the time. Wagner v. Bieley, Wagner & Associates, 263 So.2d 1 (Fla.1972). Whether the motion for rehearing was authorized depends upon an interpretation of Florida Rule of Civil Procedure 1.530 which provides under subsection (a) "for a rehearing of matters heard without a jury, including summary judgments," and under subsection (b) that a "motion ... for rehearing shall be served not later than 10 days after the ... entry of judgment in a non-jury action." This rule has been consistently construed to authorize rehearings only on orders and judgments which are final in nature. Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980); Florida Farm Bureau Insurance Co. v. Austin Carpet Service, 382 So.2d 305 (Fla. 1st DCA 1979).
Potucek argues that an order entered under rule 1.540(b), even though it follows the final judgment, is in essence a final order, itself, toward which a motion for rehearing can be directed. The case of Small v. Small, 313 So.2d 749 (Fla.1975), lends some support to his position. In that case, the supreme court held that an order entered on a petition to modify a divorce decree for changed circumstances was a final order from which a petition for rehearing could be filed, even though Florida Rule of Appellate Procedure 4.2 specified that all postdecretal orders were interlocutory. The court reasoned that since the Florida Rules of Civil Procedure required pleadings to be filed in modification proceedings as if they were initial pleadings in the action and because the modification order was res judicata, the decision was, in fact, final. Justice ...
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Francisco v. Victoria Marine Shipping, Inc.
...the motion for rehearing on the order denying the motion for relief from judgment, B & E relies principally upon Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982), and its progeny Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983); Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th D......
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Deal v. Deal
...5th DCA 1980); Florida Farm Bureau Ins. Co. v. Austin Carpet Serv., Inc., 382 So.2d 305 (Fla. 1st DCA 1979); see also Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982). We conclude, therefore, that a motion for rehearing directed to a nonfinal order, such as the order in the instant case,......
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Helmich v. Wells Fargo Bank, N.A., 1D13–1758.
...takes up an unauthorized motion for rehearing. Princess Cruises, Inc. v. Edwards, 611 So.2d 598 (Fla. 2d DCA 1993); Potucek v. Smeja, 419 So.2d 1192, 1194 (Fla. 2d DCA 1982). What is not clear, and what we write to address, is whether a trial court may sua sponte decide to revisit a matter ......
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Talley v. Canal Indem. Co.
...We have concluded that a motion for rehearing was not authorized, and therefore this appeal was not timely filed. In Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982), it was held that orders entered under Rule 1.540(b) are not subject to rehearing under Rule 1.530. The second district re......