Court: District Court of Appeal of Florida; March 21, 1996; Florida; State Appellate Court
Edward Pennington, III, the appellant, filed an appeal against appellees Eddie C. Waldheim, Jr., M.D., and others, after the Circuit Court of Orange County, Florida, issued several summary final judgments in favor of the appellees on August 10, 1995. The judgments stated that the plaintiff would take nothing from the action. Pennington filed a Motion for Rehearing on August 21, 1995, but did not serve it to the defendants. The defendants subsequently filed motions to strike the rehearing motion, asserting they had not received it, supported by affidavits, including one from a secretary who first learned of the motion through a notice of filing. A hearing on the motions to strike occurred on October 30, 1995, where Pennington's counsel acknowledged the failure to serve the motion was due to "clerical error" but argued that the appellees were not prejudiced. The court granted the motions to strike and denied Pennington's request for relief from the clerical error on November 13, 1995. Pennington filed a notice of appeal on December 12, 1995, challenging the final judgments and the order granting the motions to strike, but the court dismissed the appeal, citing the untimeliness of the notice under Rule 9.110(b) of the Florida Rules of Appellate Procedure.
Counsel is cautioned about the risks of noncompliance with Florida Rule of Civil Procedure 1.530(b), which dictates that motions for new trial or rehearing must be served within ten days of a verdict or judgment to be considered timely. Under Florida Rule of Appellate Procedure 9.110(b), notices of appeal for final orders must be filed within thirty days unless the rendition is suspended by a timely and authorized motion. In this case, final summary judgments were entered on August 10, 1995, but the appellant failed to serve his motion for rehearing within the required ten days, submitting it on August 21, 1995, instead. The court emphasized that the timeliness of service, not filing, is crucial for establishing jurisdiction under Rule 1.530(b). Consequently, the appeal of the summary final judgments was dismissed due to lack of jurisdiction. However, the appeal concerning the lower court's order to strike the motion for rehearing remains valid and will proceed under Florida Rule of Appellate Procedure 9.130(a)(4). The appellant is instructed to file his brief and appendix within twenty days. The appeal is partially dismissed, with concurrence from Judges Cobb and Harris.
