ANTONIO COUTO v. PEOPLE'S TRUST INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: April 7, 2021
• Docket: 21-0554
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 7, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-554 Lower Tribunal No. 18-6498 ________________

Antonio Couto, et al., Appellants,

vs.

People’s Trust Insurance Company, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Alonso & Perez, LLP, and Rafael F. Alonso, for appellants.

Cole, Scott & Kissane, P.A., Mark D. Tinker and Mary Lou Cuellar-Stilo (Tampa), for appellee.

Before LOGUE, SCALES and GORDO, JJ.

ON MOTION TO DISMISS GORDO, J.

Antonio and Clayde Couto appeal a nonfinal order entered in favor of

People’s Trust Insurance Company in this first-party property insurance

case. Because the Coutos did not timely file a notice of appeal within thirty

days of rendition of the underlying order, we lack jurisdiction to review it and

dismiss the instant appeal.

The nonfinal order on appeal denied People’s Trust Insurance

Company’s motion to dismiss the Couto’s amended complaint1 and granted

People’s Trust’s motion to compel compliance with option to repair and to

compel appraisal. The Coutos contend that the order is final, arguing that it

essentially granted summary judgment in favor of People’s Trust and

rendered judgment on the Coutos’ declaratory judgment action. We reject

the Coutos’ contention and conclude the order on review is a nonfinal order

as an order determining a party’s entitlement to an appraisal is a nonfinal

order enumerated in Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv),

and the portion of the order compelling compliance with the option to repair

1 While the Coutos do not challenge the portion of the order denying the motion to dismiss their complaint, we note that the nature of this order is nonfinal and nonappealable. A nonfinal order denying a motion to dismiss is not enumerated in Florida Rule of Appellate Procedure 9.130; thus, “[i]t is generally inappropriate to review a trial court’s denial of a motion to dismiss.” Williams v. Oken, 62 So. 3d 1129, 1134 (Fla. 2011).

2 did not enter judgment or otherwise end the judicial labor in the case. See

S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974).

The order on appeal was rendered on August 31, 2020. The Coutos

filed a motion for rehearing on September 15, 2020, which the trial court

denied on January 22, 2021. The Coutos then filed their notice of appeal on

February 18, 2021. People’s Trust moved to dismiss asserting the notice of

appeal was untimely filed more than thirty days after rendition of the order.

Pursuant to Florida Rule of Appellate Procedure 9.130(b), the

jurisdiction of this Court must be invoked by filing a notice of appeal within

thirty days of rendition of the order to be reviewed. “Unlike authorized and

timely motions directed to a final order, however, motions for reconsideration

or rehearing of non-final orders are unauthorized and, therefore, do not toll

the thirty-day time limit for filing the notice of appeal.” LaCarrere v. Reilly,

987 So. 2d 816, 816 (Fla. 3d DCA 2008) (citing Fla. R. App. P. 9.020(h);

Decktight Roofing Servs., Inc. v. Amwest Sur. Ins., 841 So. 2d 667, 668 (Fla.

4th DCA 2003)). Because the Coutos filed their notice of appeal on February

18, 2021, more than thirty days from the August 31, 2020 rendition of the

nonfinal order, “[t]he notice was untimely filed and this Court does not have

jurisdiction to hear the appeal.” Id.

Dismissed.