Third District Opinion Underscores Dangers of Miscalculating the Time to Appeal Orders Denying Motions to Vacate Judgment
Careful practitioners calculating the time to file a notice of appeal of a trial court order denying a motion to vacate a judgment should take note of a recent opinion issued by Florida’s Third District Court of Appeal.
In Ricardo v. Wells Fargo Bank National Association, Case No. 3D14-3056 (Fla. 3d DCA June 24, 2015), the defendant in a foreclosure action filed a motion to vacate a final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The motion to vacate was denied by an order rendered on July 31, 2014.
Florida Rule of Appellate Procedure 9.130(a)(5) provides:
Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders will not toll the time for filing a notice of appeal.
Accordingly, to timely perfect an appeal, the defendant would have needed to file a notice of appeal of this order under the method set forth in Rule 9.130 within thirty (30) days of rendition, to wit, on or before September 1, 2014. Fla. R. App. P. 9.130(b).
Instead of doing so, the defendant filed a motion for rehearing on August 9, 2014, possibly under the mistaken belief that the motion would toll the time to appeal. The motion for rehearing was denied on November 18, 2014.
Then, on December 17, 2014, the defendant filed a notice of appeal of the order denying the motion for rehearing (not the earlier order denying the motion to vacate). The plaintiff, Wells Fargo, moved to dismiss the appeal for lack of jurisdiction.
In a very brief opinion, the Third District agreed with Wells Fargo and dismissed the appeal “[b]ecause an order on a motion for rehearing is not independently appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(4),” which provides:
Orders disposing of motions that suspend rendition are not reviewable separately from a review of the final order; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule 9.110.
Since the defendant did not appeal the order denying the motion to vacate, but rather only attempted to appeal the order denying the motion for rehearing, the appellate court was without jurisdiction pursuant to Rule 9.130(a)(4).
Further, even if the defendant had attempted to appeal the order denying the motion to vacate instead, that appeal would have been untimely because, pursuant to Rule 9.130(a)(5), the motion for rehearing did not toll the time to appeal. Bastida v. Vitaver, 590 So. 2d 1092, 1093 (Fla. 3d DCA 1991) (“Any order finally disposing of this amended motion [to vacate under Fla. R. Civ. P. 1.540] would be appealable as a final order under the method prescribed by Fla. R. App. P. 9.130(a)(5), although the time for taking such an appeal would not be stayed by a motion for rehearing filed thereafter.”).
The Ricardo opinion underscores the importance of understanding appellate court jurisdiction and the Florida Rules of Appellate Procedure, since failure to do so may lead to a loss of the essential right to appellate review.
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