Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, No. 39225

• Court: United States State Supreme Court of Florida
• Writing for the Court: DREW; ERVIN; ERVIN
• Citation: 236 So.2d 1
• Parties: SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, Petitioner/Relator, v. Tillman PEARSON, Chief Judge, Norman Hendry, Charles A. Carroll, Thomas H. Barkdull, Jr., and Richard H. M. Swann, Judges of the District Court of Appeal of Florida, Third District, and Raymond Cloud, Respondents.
• Docket Number: No. 39225
• Decision Date: 20 May 1970

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236 So.2d 1 SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, Petitioner/Relator,
v.
Tillman PEARSON, Chief Judge, Norman Hendry, Charles A. Carroll, Thomas H. Barkdull, Jr., and Richard H. M. Swann, Judges of the District Court of Appeal of Florida, Third District, and Raymond Cloud, Respondents. No. 39225. Supreme Court of Florida. May 20, 1970.

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Edward A. Perse, of Carey, Dwyer, Austin, Cole & Selwood, Miami, for petitioner-relator.

Horton & Schwartz and Knight, Underwood, Peters, Hoeveler & Pickle, Miami, for respondents.

DREW, Justice.

The petitioner Shelby Mutual Insurance Company of Shelby, Ohio, seeks inssuance of a Writ of Mandamus directing the district Court of Appeal, Third District, to reinstate and decide on the merits an appeal dismissed by order of that court. The jurisdiction of this Court had been properly invoked under Article V, Section 4, of the Florida Constitution, F.S.A., and Florida Appellate Rules 2.1, subd. a (5) and 4.5, subd. b, 32 F.S.A., permitting this Court to issue writs of mandamus to our district courts of appeal.

We dispose of the petition by determining whether the respondents, the Chief Judge and Judges of the District Court of Appeal, Third District, properly dismissed for lack of jurisdiction ¹ an appeal from a summary final judgment which was purportedly set aside by the trial court on motion filed after expiration of ten days from entry and rendition of the judgment and after denial of a petition for rehearing thereon.

After consideration of the Return to the alternative writ and arguments and briefs on behalf of both parties, we conclude that the appeal should not have been dismissed and must be reinstated.

The procedural problem before us has arisen from the following sequence of events. The petitioner insurance company was the defendant in a circuit court action in which its insured sought recovery for an alleged breach of duty to exercise good faith. The trial court entered a summary final judgment in favor of the defendant insurer on September 4, 1969. A petition for rehearing to set aside the summary final judgment was timely filed on September 15, 1969 (the ten day filing period under Florida Rule of Civil Procedure 1.530, 31 F.S.A. having ended on Sunday, September 14, 1969). On September 18, 1969, the trial court entered an order denying plaintiff's petition for rehearing.

On October 6, 1969, thirty-two days after entry of the summary final judgment and eighteen days after entry of the order denying the petition for rehearing, plaintiff filed a 'Motion for Re-consideration,' asking the trial court to reconsider the merits of the petition for rehearing. The trial court on October 17, 1969, entered an 'Order Setting Aside Summary Final Judgment and Order Denying Petition for Rehearing and Denying Motions for Summary Judgment.' In the order the trial court concluded that it had incorrectly entered the summary final judgment and denied without argument plaintiff's petition for rehearing, for the reason that the cause presented issues for determination by a jury. The order set aside the September 4th summary final judgment, set aside the September 18th order denying petition for rehearing, and denied both plaintiff's and defendant's motions for summary judgments.

After having apparently succeeded in having the trial court set aside the summary final judgment in defendant's behalf, the plaintiff then on October 20, 1969, timely filed a 'Notice of Appeal from the Summary Final Judgment' and from the

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denial of the petition for rehearing. ² The plaintiff proceeded to file assignments of error directed toward entry of the summary final judgment and the defendant filed cross-assignments of error directed to the order of October 17, 1969, purporting to set aside the summary judgment.

The plaintiff then filed a 'Suggestion of Lack of Jurisdiction,' suggesting that the district court was without jurisdiction of his own appeal because 'the judgment appealed from has been set aside by a valid order of the Trial Court.' Plaintiff admitted in its suggestion that it had filed the appeal from the summary judgment in the event the order setting it aside was invalid. The district court granted the suggestion and ordered that the appeal from the summary final judgment be dismissed, relying upon this Court's decision in Floyd v. State ex rel. La Vigne Electric Co. ³ Once the district court dismissed the appeal, defendant was left without remedy to review the standing, but invalid, order of the trial court setting aside the summary judgment in defendant's behalf.

One of the goals of our system of jurisprudence is that litigation be finally terminated as quickly as due process and necessary reflection allows. To this end, we have provided in Florida Rule of Civil Procedure 1.530 that motions and petitions for correction of error by the trial court be made within ten days after rendition of the judgment or order. ⁴ Unless a proper motion or petition is filed within the allotted time, the judgment or order of the trial court becomes absolute. Except as provided by Rules 1.530 and 1.540,...