SOL W. MEYERSON, D/B/A GALLERIA FASHIONS, PETITIONER,
v.
TEXSOL, INC., RESPONDENT
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Meyerson sought certiorari review of a circuit court order dismissing his appeal as untimely from a civil contempt order. The district court held that a motion to set aside an order and award of fees filed in the trial court tolled the appeal period, and quashed the dismissal order.
The district court held that the motion to set aside the order and award of fees did toll the appeal period, and quashed the circuit court's dismissal of the appeal as untimely. The court found merit in Meyerson's contentions that the circuit court departed from essential requirements of law.
[1] A motion to set aside an order and award of fees filed in the trial court does not toll the time for filing a notice of appeal from the order being appealed.
[2] A motion for rehearing is not authorized by Rule 1.530 of the Florida Rules of Civil Procedure when directed to an order of civil contempt, and therefore does not toll th…
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Join FLexlaw to unlock all legal intelligence“Appellant's "Motion to Set Aside Order and Award of Fees", filed in the trial court on March 15 and denied on April 2, did not toll the time required for filing a notice of appeal from the order of March 5.”
The circuit court's erroneous reasoning that the motion did not toll the appeal period, which the district court found to depart from essential requirements of law.
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Join FLexlaw to unlock all legal intelligenceMeyerson appealed a civil contempt order entered March 5, 1979. He filed a motion to set aside the order and award of fees on March 15, 1979, which wa…
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PER CURIAM.
This petition for certiorari seeks review of an order of the Circuit Court for Dade County, entered in its appellate capacity, dismissing an appeal from the County Court of Dade County.
The order of dismissal under review reads as follows:
This is an appeal from a post decretal order of civil contempt entered on March 5, 1979. Notice of Appeal was filed on April 12,1979. Appellant’s “Motion to Set Aside Order and Award of Fees”, filed in the trial court on March 15 and denied on April 2, did not toll the time required for filing a notice of appeal from the order of March 5. Even if we consider the aforesaid motion to be a motion for rehearing, it is not authorized by Rule 1.530 of the Florida Rules of Civil Procedure and, ergo, does not toll the appeal period during its pendency. The time for taking an appeal is tolled when a timely motion for rehearing is directed to an order granting summary judgment or a final judgment in a non-jury trial. The order of civil contempt sub judice is not in either category. It is ordered sua sponte that the appeal be and is hereby dismissed. See Wagner v. Bieley, 263 So. 2d 1 (Fla.1972).
It is petitioner’s contention that the circuit court departed from the essential requirements of law in holding (1) that the motion to set aside order and award of fees filed in the trial court on March 15, 1979, and denied on April 2, 1979, did not toll the time required for filing a notice of appeal from the order of March 5, 1979; (2) that even if the motion be considered a motion for rehearing, it was not authorized by Fla. R.Civ.P. 1.530, and thus did not toll the period during its pendency.
We find merit in petitioner’s contentions and quash the order of the circuit court dismissing the appeal as untimely. Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla.1979); Clearwater Federal Savings & Loan Association v. Sampson, 336 So. 2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976); Hall v. Ricardo, 331 So. 2d 375 (Fla. 3d DCA 1976); Jones v. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972); Kirby v. Speight, 217 So. 2d 871 (Fla. 1st DCA 1969).
The petition for writ of certiorari is granted and the order dismissing the appeal is quashed with directions to the circuit court to reinstate the appeal and decide the merits of the cause.
So ordered.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…wed for a motion for rehearing under Rule 1.530. This court has held that a "motion to set aside order,” filed within 10 days after entry of a final order, will be treated as a timely motion for rehearing under Rule 1.530. Meyerson v. Texsol, Inc., 385 So. 2d 5, 6 (Fla. 3d DCA 1980); see Griffin v. Tauber-Manon Associates, Inc., 452 So. 2d 577, 578 n. 2 (Fla. 3d DCA 1984); see also Salam v. Benmelech, 622 So. 2d 592, 593 (Fla. 3d DCA 1993) (motion for modification of final judgment is properly viewed as a…
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Arvida Corp. v. The Honorable Robert S. Hewitt & Jon Earhart, 416 So. 2d 1264 (Fla. 4th DCA 1982)…the trial court had denied the rehearing of a final post-judgment order. Clearwater Federal Savings & Loan Association v. Sampson, 336 So. 2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976); Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980). To have such an order there necessarily must be an existing judgment. That is not the case here. Fourth, petitioner inadvertently termed its petition “emergency” in nature. For the benefit of the Bar, we mention that section 3.2…
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Griffin v. Tauber-Manon Assocs., Inc., 452 So. 2d 577 (Fla. 3d DCA 1984)…d DCA 1982) (en banc).3 On that basis alone, the motion to dismiss is denied. . "A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.” . The appellees’ reliance on Meyerson v. Texsol, Inc., 385 So. 2d 5 (Fla. 3d DCA 1980) is misplaced. In that case, the motion designated as one to set aside a final order was in fact filed within ten days so that it could be, as it was, treated as a timely-filed motion for rehearing with the consequent effect of tol…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wagner v. Bieley, 263 So. 2d 1 (Fla. 1972)
- Clearwater Fed. Sav. & Loan Ass'n v. Sampson, 336 So. 2d 78 (Fla. 1976)
- Town OF Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)
- Jones v. Nan Gay Denmark and John A. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972)
- Renate Hall & State Farm Fire & Cas. Co. v. Ricardo, 331 So. 2d 375 (Fla. 3d DCA 1976)
- Kirby v. Speight, 217 So. 2d 871 (Fla. 1st DCA 1969)
- Khem-Troll, Inc. v. Edelman, 351 So. 2d 1040 (Fla. 4th DCA 1976)