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For whom the bell tolls-does your motion toll rendition?

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Most Florida litigators know that a state court appeal in Florida must be commenced within 30 days of rendition of the order to be reviewed and that failure to timely file a notice of appeal is an “irredeemable jurisdictional defect.” Many also know that jurisdiction of the appellate court is invoked by filing a notice of appeal, accompanied by the prescribed filing fee and a copy of the order to be appealed, with the clerk of the lower tribunal. But what is the meaning of “rendition”? 

Florida Rule of Appellate Procedure 9.020(h) explains that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” It then lists motions which, “if authorized and timely” toll rendition “unless another applicable rule of procedure specifically provides to the contrary.” Fla. R. App. P. 9.020(h)(1). Among the motions listed (and the one most frequently employed) is a “motion for rehearing.” If such a timely and authorized motion directed to a final order is filed in the lower tribunal, then the order is not deemed “rendered”—meaning the 30-day time period for filing the notice of appeal does not begin to run—until the motion is either withdrawn or resolved by rendition of an order disposing of it.

However, cautious counsel will often file the notice of appeal within 30 days of the order to which the motion for rehearing is directed, even if the motion for rehearing remains pending, and ask the appellate court to hold the appeal in abeyance until the trial court rules. Under prior versions of the rules, filing a notice of appeal while such motions were pending was deemed abandonment of those pending motions. But the Florida Rules of Appellate Procedure now provide that if certain listed motions are pending, the appeal shall be held in abeyance until such motions are withdrawn or resolved by the trial court.

A motion for rehearing is only timely and “authorized” if it is directed to a final order. See Fla. R. App. P. 9.020(h); Fla. R. Civ. P.  1.530.

Certain non-final orders are immediately appealable under Rule 9.130. These include orders that deny a motion asserting entitlement to sovereign immunity and orders determining entitlement of a party to arbitrate for example. Although trial courts have inherent authority to reconsider, amend, or vacate their rulings (as long as they have jurisdiction), motions for reconsideration directed to non-final orders are not deemed “authorized” under the rules, and thus do not toll rendition. Therefore, a notice of appeal of an order denying enforcement of an arbitration clause, for example, must be filed within 30 days of the order, even if a motion for reconsideration directed to that order remains pending.

By way of further example, if a court enters a final appealable order (such as summary judgment that ends judicial labor as to a party and has the requisite language of finality)and a motion for rehearing directed to that order is served 16 days later, the motion would not toll rendition because, though Rule 1.530 authorizes such a motion, it  requires the motion to be served not later than 15 days later. Remember, the rule tolling rendition applies only to authorized and timely motions; thus, a motion for rehearing served outside of the 15-day window would be untimely and the clock for filing the notice of appeal would continue to run. An appeal of the judgment would need to be commenced within 30 days of its being filed with the clerk of the lower tribunal.

It is also important to know that a motion to a motion to vacate a judgment under Florida Rule of Civil Procedure 1.540(b) (such as for excusable neglect, fraud, or newly discovered evidence) does not toll rendition. The rule states: A motion under this subdivision does not affect the finality of a judgment, decree, or order or suspend its operation. Thus, to appeal the underlying order, the notice of appeal must be filed within 30 days of the order being filed with the clerk of court.

Discerning a final order from a non-final order is sometimes the toughest part of the appellate process. Indeed, at a recent appellate judges’ conference, participants (including the judges, their law clerks, and appellate practitioners) engaged in an exercise to identify whether particular orders were either (1) final, appealable orders; (2) non-final orders appealable under Florida Rule of Appellate Procedure 9.130; or (3) non-final, non-appealable orders. Guess what? Although there was consensus on many of the orders, for several others, there were very mixed opinions on whether the orders were appealable.

Trial lawyers: if you have any doubt about whether a trial court order triggers the 30-day window to file a notice of appeal, contact an experienced appellate attorney without delay. Losey PLLC has skilled appellate and trial support practitioners who can guide you in protecting your client’s rights to an appeal. We can also draft substantive motions and oppositions; assist with legal research, analysis, and case strategy; and counsel you on issue preservation.

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