Dresdner, Md, Pa v. Charter Oak

972 So. 2d 275, 2008 WL 161014
CourtDistrict Court of Appeal of Florida
DecidedJanuary 18, 2008
Docket2D05-5457, 2D05-5613
StatusPublished
Cited by18 cases

This text of 972 So. 2d 275 (Dresdner, Md, Pa v. Charter Oak) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dresdner, Md, Pa v. Charter Oak, 972 So. 2d 275, 2008 WL 161014 (Fla. Ct. App. 2008).

Opinion

972 So.2d 275 (2008)

DAVID M. DRESDNER, M.D., P.A., a Florida professional service corporation, Appellant/Cross-Appellee,
v.
The CHARTER OAK FIRE INSURANCE COMPANY, a foreign corporation, Appellee/Cross-Appellant.

Nos. 2D05-5457, 2D05-5613.

District Court of Appeal of Florida, Second District.

January 18, 2008.

*276 George A. Vaka and Nancy Lauten of Vaka, Larson & Johnson, P.L., Tampa; Brad Salter of Law Office of Brad Salter, P.A., St. Petersburg; and Bernard Kanner, St. Petersburg, for Appellant/Cross-Appellee.

Denise V. Powers of Denise V. Powers, P.A., Coral Gables; and Rebecca G. Casagrande of Casagrande & Associates, P.A., St. Petersburg, for Appellee/Cross-Appellant.

PER CURIAM.

In this appeal we are asked to decide whether a trial court may vacate an earlier order or judgment and then reenter the same order or judgment to allow a party to perfect an appeal when the party previously failed to file a timely notice of appeal as a result of lawyer error amounting to excusable neglect. We conclude that the trial court does not have the authority to relieve a party of the consequences of his or her lawyer's mistake under these circumstances, even though the lawyer's error may be excusable. It follows that a trial court is precluded from setting aside an earlier order or judgment and reentering it to permit a party to perfect an appeal under these circumstances. Accordingly, we reverse the trial court's order in this case that granted such relief under rule 1.540(b) of the Florida Rules of Civil Procedure. The reversal of that order compels the conclusion that the notice of appeal that the losing party filed after the entry of the second order was untimely filed. Consequently, we dismiss that appeal for lack of jurisdiction. We affirm a separate final judgment for attorney's fees and costs.

THE PROCEDURAL BACKGROUND

In August 2002, David M. Dresdner, M.D., P.A. (Dr. Dresdner), filed an action *277 against The Charter Oak Fire Insurance Company (Charter Oak) on a business owner's insurance policy. Dr. Dresdner sought reimbursement for the loss of medical supplies valued at $125,285.82, less the applicable $500 deductible. Charter Oak contested Dr. Dresdner's claim on the policy. After a bench trial, the trial court entered a "Non-Jury Trial Verdict" in favor of Charter Oak and against Dr. Dresdner. On February 25, 2005, the trial court entered a final judgment in favor of Charter Oak.

After the entry of the final judgment, Dr. Dresdner timely served a "Motion for New Trial and Motion for JNOV."[1] The timely service of this motion postponed rendition of the adverse final judgment. Fla. R.App. P. 9.020(h). On April 6, 2005, the trial court entered an order denying Dr. Dresdner's motion for new trial. Therefore, to appeal the final judgment in favor of Charter Oak, Dr. Dresdner was obligated to file a notice of appeal with the trial court on or before Friday, May 6, 2005. Fla. R.App. P. 9.110(b). Unfortunately, a legal assistant employed by Dr. Dresdner's appellate lawyer apparently failed to calendar the deadline for filing the notice of appeal. As a result, Dr. Dresdner's notice of appeal of the final judgment was not filed with the trial court until Monday, May 9, 2005. Thus the notice of appeal was filed one day late. On July 13, 2005, this court dismissed Dr. Dresdner's first appeal for lack of jurisdiction because the notice of appeal was not timely filed.

After his first appeal was dismissed, Dr. Dresdner filed a motion for relief from judgment in the trial court under the provisions of rule 1.540(b) seeking to vacate the April 6, 2005, order denying the motion for new trial. In the motion, Dr. Dresdner alleged, in pertinent part, "[t]hat because of mistake, inadvertence and/or excusable neglect, the Notice of Appeal did not get calendared and, as such, the Notice of Appeal was not timely filed." The motion was supported by several affidavits that detailed the series of events that led to the late filing of the notice of appeal. The motion concluded by asking the trial court "to enter an order setting aside the April 6, 2005[,] Order reentering the Order with the present date and allowing [Dr. Dresdner] to go forward with the planned appeal."

On October 5, 2005, the trial court entered an order granting Dr. Dresdner's rule 1.540(b) motion. In its order, the trial court found that Dr. Dresdner "ha[d] demonstrated excusable neglect to grant the relief requested." The order vacated the trial court's prior order of April 6, 2005, and reentered the order denying Dr. Dresdner's motion for new trial without any substantive change. On the same day, the trial court entered a separate final judgment awarding Charter Oak $36,021 in attorney's fees and $3000 costs against Dr. Dresdner. The attorney's fee award was based on a proposal for settlement under section 768.79, Florida Statutes (2001), and rule 1.442 of the Florida Rules of Civil Procedure.

On October 26, 2005, Dr. Dresdner filed a notice of appeal from the final judgment entered on February 25, 2005, and the separate final judgment for attorney's fees and costs entered on October 5, 2005. This court designated Dr. Dresdner's second appeal as case number 2D05-5457. Charter Oak timely appealed the order granting relief from judgment that vacated and then reentered the order denying Dr. Dresdner's motion for new trial. This *278 court assigned case number 2D05-5613 to Charter Oak's appeal. Dr. Dresdner's second appeal and Charter Oak's appeal were subsequently consolidated, and Charter Oak's appeal is treated as a cross-appeal.

DISCUSSION

A. Approaching the Issues

On its face, Dr. Dresdner's second notice of appeal from the adverse final judgment entered on February 25, 2005, is timely, based on a rendition date of October 5, 2005. However, the timeliness of Dr. Dresdner's appeal of that final judgment depends on the validity of the trial court's order of October 5, 2005, that is challenged by Charter Oak on its cross-appeal. In effect, that order purports to change the rendition date of the February 25, 2005, final judgment on the merits from April 6, 2005, to October 5, 2005. Therefore, we are required to address first Charter Oak's cross-appeal because of its potential impact on Dr. Dresdner's appeal of the February 25, 2005, final judgment.

B. Charter Oak's Cross-Appeal (Case No. 2D05-5613)

Charter Oak argues on its cross-appeal that the trial court erred in using rule 1.540(b) as a vehicle to circumvent the jurisdictional requirement that a notice of appeal be timely filed. In considering this argument, we begin by reviewing the relevant statute and rules of court. Section 59.081, Florida Statutes (2004), addresses the subject of the time for invoking the appellate jurisdiction of any court. The statute provides:

(1) The time within which and the method by which the jurisdiction of any court in this state possessed of power to review the action of any other court, commission, officer or bureau may be invoked by appeal, certiorari, petition for review or other process by whatever name designated, and the manner of computing such time shall be prescribed by rule of the Supreme Court.
(2) Failure to invoke the jurisdiction of any such court within the time prescribed by such rules shall divest such court of jurisdiction to review such cause.

Id.

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Cite This Page — Counsel Stack

Bluebook (online)
972 So. 2d 275, 2008 WL 161014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dresdner-md-pa-v-charter-oak-fladistctapp-2008.