RICHARD DIMOSI DIASOLWA v. ALEXA BURNEIKIS

• Court: District Court of Appeal of Florida
• Decided: November 30, 2022
• Docket: 21-0899
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 30, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0899 Lower Tribunal No. 16-7099 ________________

Richard Dimosi Diasolwa, Appellant,

vs.

Alexa Burneikis, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David Young, Judge.

Nancy A. Hass, P.A., and Nancy A. Hass (Ft. Lauderdale), for appellant.

Marks & West, P.A., and Evan R. Marks, and Carolyn W. West; Shutts & Bowen, LLP, and Jennifer E. Reisler (West Palm Beach), and Julissa Rodriguez, and Garrett A. Tozier (Tampa), for appellee.

Before SCALES, LINDSEY, and BOKOR, JJ. LINDSEY, J.

On Motion to Dismiss

Appellant Richard Dimosi Diasolwa (the “Father”) appeals from an

Amended Final Judgment of Paternity. Appellee Alexa Burneikis (the

“Mother”) has filed a motion to dismiss for lack of jurisdiction on the basis

that the Father did not timely appeal the operative October 22, 2019 Final

Judgment. The Father claims he never received notice of the October Final

Judgment. Because the appeal is untimely, we are compelled to dismiss.

This is a paternity action. The primary disputes below involved the

parties’ child support obligations and the child’s legal name. On October 22,

2019, the trial court rendered a Final Judgment. 1 The Father did not appeal

the Final Judgment within 30 days, nor did he file a timely post-judgment

motion that would toll rendition. See Fla. R. App. P. 9.110(b) (“Jurisdiction

of the court under this rule [to review final orders] shall be invoked by filing a

notice, accompanied by any filing fees prescribed by law, with the clerk of

the lower tribunal within 30 days of rendition of the order to be reviewed . . .

.”); see also Fla. R. App. P. 9.020(h)(1) (listing motions that toll rendition, so

long as they are authorized and timely filed).

1 “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h).

2 On November 25, 2019, the Mother requested correction of a

typographical error in the Final Judgment. 2 Specifically, the signing date was

incorrectly written with the wrong year, 2020 instead of 2019. Also on

November 25, 2019, counsel for the Father sent an email to the judicial

assistant claiming he never received a copy of the Final Judgment:

Please be advised that counsel for the Father has never received a signed Final Judgment by the Court. Much to my surprise, a Final Judgment seems to be entered by the Court on October 22, 2019. I have checked all of my emails on my email designation and no emails from the Court have been received. Please advise as to where the Court sent this Final Judgment as the Father and his counsel never received any notice.

Despite claiming not to have received notice of the Final Judgment, the

Father did not file a motion for relief from judgment pursuant to Florida Family

Law Rule of Procedure 12.540(b)(4), 3 which is the established procedure for

challenging a judgment entered without notice. See, e.g., Lamoise Grp., LLC

v. Edgewater S. Beach Condo. Ass’n, 278 So. 3d 796, 799 (Fla. 3d DCA

2 This cannot be considered a timely motion to amend, which would toll rendition, because a timely motion to amend must be filed within 15 days of rendition of the final order. See Fla. Fam. L. R. P. 12.530(h). 3 “On motion and on such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: . . . (4) that the judgment is void . . . .” Fla. Fam. L. R. P. 12.540(b)(4).

3 2019) (“Generally, a judgment is void . . . (3) if, in the proceedings leading

up to the judgment, there is a violation of the due process guarantee of notice

and an opportunity to be heard.” (quoting Nationstar Mortg., LLC v. Diaz, 227

So. 3d 726, 729 (Fla. 3d DCA 2017))); see also Philip J. Padovano, 5 Fla.

Prac., Civil Prac. § 13:8 (2022 ed.) (“It is a well established principle that a

judgment entered without notice is void.”). Consequently, the trial court

never determined whether the Father had notice, and the October 22, 2019

Final Judgment still stands.

The trial court rendered an Amended Final Judgment on November 25,

2019, which fixed the typographical error but is otherwise the same as the

October Final Judgment. It is from this Amended Final Judgment that the

Father attempts to invoke this Court’s appellate jurisdiction. 4 But because

the Amended Final Judgment only fixes a typographical error, the operative

judgment is still the October Final Judgment. Consequently, the Amended

4 The Father filed a motion for rehearing below directed at the Amended Final Judgment. He then appealed within 30 days of the order on rehearing. However, since the operative judgment is the October Final Judgment, the Father’s motion for rehearing was untimely. See Padovano, supra, at § 2:4 (“A motion can suspend rendition only if it is directed to the order that is the subject of the appeal. If the motion is directed to another order entered after the final order, the time for filing an appeal from the final order will continue to run. For example, if a party files a motion for rehearing that is directed to an amended final judgment, the motion will not extend the time for filing an appeal from the judgment itself.” (footnote omitted)).

4 Judgment cannot be treated as a new final judgment for the purposes of

appellate jurisdiction. See, e.g., DeGale v. Krongold, Bass & Todd, 773 So.

2d 630, 631–32 (Fla. 3d DCA 2000) (“Florida follows the majority rule that,

where a judgment is amended in a material respect, the appeal time runs

from the date of the amendment, provided the amendment is material, not

minor or formal. . . . The effect of the amendment was to correct mere clerical

errors, which had no impact on the rights of the parties or the finality of the

trial court’s original final summary judgment and order for purposes of

appeal."); Padovano, supra, at § 2:4 (“Of course, an amended judgment is

appealable in its own right to the extent that it adjudicates an issue not

addressed in the original judgment. However, unless there has been a

material change, the scope of review on appeal from an amended final

judgment is limited to the new issues adjudicated by the amended

judgment.”).

We are therefore compelled to dismiss the appeal as untimely. Our

dismissal is without prejudice to the Father seeking relief from judgment

below pursuant to Florida Family Law Rule of Procedure 12.540(b).5

Motion to dismiss granted; appeal dismissed.

5 We express no opinion on the merits of a motion for relief from judgment.