SOUTHERN ATLANTIC CONSTRUCTION CORPORATION, APPELLANT,
v.
FIRST CORPORATION OF DESOTO COUNTY, A FLORIDA CORPORATION, ET AL., APPELLEES
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ANSTEAD, Judge.
The court previously granted a motion to dismiss this appeal which alleged that the appeal was untimely because its timeliness was predicated on an untimely served motion for rehearing in the trial court. Florida Rule of Civil Procedure 1.530(b) provides that a motion for rehearing shall be served not later than ten days after entry of judgment in a non-jury action. The final summary judgment to which appellant’s motion for rehearing was directed was signed and filed on December 7, 1981. It is undisputed that appellant filed his motion for rehearing in the trial court on December 17, 1981, and served it on appellee on December 18. Initially, it appeared that the motion was untimely and that dismissal was justified under the holding of Behm v. Division of Administration, 288 So. 2d 476, 478 (Fla.1974), citing Miami Transit Company v. Ford, 155 So. 2d 360, 372 (Fla.1963), that service of the motion is the critical act which must be done within a specific time.
However, in Casto v. Casto, 404 So. 2d 1046 (Fla.1981), reversing the opinion of this court at 388 So. 2d 1 (Fla. 4th DCA 1980), the Supreme Court interpreted “entry of judgment” under Florida Rule of Civil Procedure 1.530(b) as occurring with the recording of the judgment. Although signed and filed on December 7, 1981, it appears that the judgment in this case was not recorded until December 9, making service of the motion for rehearing on December 18 timely. Accordingly, the appeal should not have been dismissed and should now be reinstated.
APPEAL REINSTATED.
BERANEK and HERSEY, JJ., concur.
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Pruitt v. Brock, 437 So. 2d 768 (Fla. 1st DCA 1983)…-year time limit imposed by rule 1.540(b). . Although the rule announced in Casto has been applied in such a way as to render otherwise untimely notices of appeal timely, see Southern Atlantic Construction Co. v. First Corporation of DeSoto County, 419 So. 2d 729 (Fla. 4th DCA 1982) and Grabarnick v. Florida Homeowners Association of North Broward, Inc., 419 So. 2d 1065 (Fla.1982), that rule has also prompted criticism by Justices McDonald and Alderman, who have suggested that the Casto decision was a “mista…
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In re Est. Of Mark Daniel Zimbrick v. Zimbrick, 453 So. 2d 1155 (Fla. 4th DCA 1984)…ate another new form of authorized “premature motion” and thereby encourage this kind of inappropriate practice. I would simply deny the motion to dismiss in an order citing Southern Atlantic Construction Corp. v. First Corporation of DeSoto County, 419 So. 2d 729 (Fla. 4th DCA 1982). I also believe the majority sets a dangerous course for lawyers by shortening the time in which rehearing may be sought. For unexplained reasons, the majority draws a distinction between final orders and judgments as to when t…
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Menfi v. Exxon Co., 433 So. 2d 1327 (Fla. 3d DCA 1983)…d not toll the time for the taking of the appeal, see, e.g., Casto v. Casto, 404 So. 2d 1046 (Fla.1981) (untimely motion for rehearing does not toll time for taking appeal); Southern Atlantic Construction Corp. v. First Corporation of Desoto County, 419 So. 2d 729 (Fla. 4th DCA 1982) (same), and the appeal is untimely. Florida Rule of Civil Procedure 1.530(b) provides that a motion for new trial shall be served not later than ten days “after the rendition of verdict in a jury action.” The appellant, relying o…
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- Casto v. Casto, 404 So. 2d 1046 (Fla. 1981)
- Miami Transit Co. v. Ford, 155 So. 2d 360 (Fla. 1963)
- Behm v. Division OF Administration, 288 So. 2d 476 (Fla. 1974)
- Witt v. State, 388 So. 2d 1 (Fla. 4th DCA 1980)