Third District Court of Appeal State of Florida
Opinion filed September 13, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1175 Lower Tribunal No. 23-14668 ________________
Send Enterprises, LLC, et al., Appellants,
vs.
Set Drive, LLC, et al., Appellees.
An Appeal from non-final orders from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge.
Douglas Cox, and Nicole Pearl, in proper persons.
León Cosgrove Jiménez, LLP, Marcos Daniel Jiménez and Derek E. León, Corey D. Berman and Sofia Manzo; Bauch & Michaels, LLC, and Paul M. Bauch (Chicago, IL), for appellees.
Before EMAS, FERNANDEZ and GORDO, JJ.
GORDO, J. ON MOTION TO DISMISS
Set Drive, LLC and Phillip Sylvester (collectively, “Set Drive”) move to
dismiss Drive Development, LLC’s (“Development”)1 appeal of a non-final
order appointing a receiver and an order denying a motion for rehearing
pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(D). For the
reasons detailed below, we grant the motion and dismiss this appeal as
untimely.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2023, the trial court entered an order granting Set Drive’s
motion for appointment of a receiver. Two days later, Development filed an
emergency motion for rehearing raising substantive arguments and
asserting the trial court failed to make sufficient findings of fact. Following a
hearing, the trial court denied the emergency motion for rehearing on May
30, 2023. Development filed a notice of appeal on June 30, 2023.
Set Drive subsequently filed the instant motion to dismiss, arguing the
appeal was untimely as it was not filed within thirty days of the May 15, 2023,
order appointing a receiver. Specifically, it asserts this Court lacks
1 This includes Drive Realty, LLC, Douglas Cox and Nicole Pearl. While this appeal originally included Send Enterprises, LLC and Drive Development Group, LLC, these parties filed a notice of voluntary dismissal in the pendency of this appeal.
2 jurisdiction as Development’s emergency motion for rehearing did not toll
rendition of the order appointing a receiver. Development filed a response
in opposition contending that under the newly amended Florida Rule of Civil
Procedure 1.530, its emergency motion for rehearing tolled rendition of the
order appointing the receiver. 2
LEGAL ANALYSIS
We have for review a somewhat novel issue based on newly amended
Rule 1.530: Does the new amendment of Rule 1.530 authorize a motion for
rehearing of non-final orders, such that it tolls rendition of the order on appeal
during the rehearing period?
The Florida Supreme Court has recently amended Rule 1.530 to read:
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. To preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
Fla. R. Civ. P. 1.530(a) (emphasis added).
2 Because the relevant amendment to Rule 1.530(a) became effective on April 27, 2023, the amended Rule is applicable here. See In re Amends. to Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L. Rule of Proc. 12.530, 48 Fla. L. Weekly S69 (Fla. Apr. 27, 2023).
3 The Florida Supreme Court stated this amendment was “necessary to
clarify that filing a motion for rehearing is required to preserve an objection
to insufficient trial court findings in a final judgment order.” In re Amends. to
Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L. Rule of Proc. 12.530, 346 So. 3d
1161, 1162 (Fla. 2022). The Florida Supreme Court later expanded that
finding and made the amended Rule “applicable to all orders, not just final
judgments.” In re Amends. to Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L.
Rule of Proc. 12.530, 48 Fla. L. Weekly S69 (Fla. Apr. 27, 2023).
Development argues that by utilizing this language, the Florida
Supreme Court intended to authorize motions for rehearing to toll rendition
of non-final orders. We are not so persuaded.
We begin by recognizing that under Florida law there are certain
motions that, when filed in the trial court, toll rendition of an order. Pursuant
to Florida Rule of Appellate Procedure 9.020(h)(1):
(1) Motions Tolling Rendition. The following motions, if authorized and timely filed, toll rendition unless another applicable rule of procedure specifically provides to the contrary: ... (B) motion for rehearing;
Fla. R. App. P. 9.020(h) (emphasis added). Here, it is uncontested that
Development filed a timely emergency motion for rehearing which was ruled
on by the trial court on May 30, 2023. The question then becomes whether
4 the motion for rehearing was authorized thus tolling rendition of the order on
appeal, or another applicable rule of procedure specifically provides to the
contrary.
An order granting the appointment of a receiver is one of the
enumerated appealable non-final orders reviewable pursuant to Florida Rule
of Appellate Procedure 9.130(a)(3)(D). Pursuant to Rule 9.130(a)(5),
“[m]otions for rehearing directed to these orders are not authorized under
these rules and therefore will not toll the time for filing a notice of appeal.”
Fla. R. App. P. 9.130(a)(5) (emphasis added).
It is therefore well-established Florida law that motions for rehearing of
non-final orders are unauthorized and cannot toll rendition of an order
pursuant to Rule 9.020(h)(1)(B). See LaCarrere v. Reilly, 987 So. 2d 816,
816 (Fla. 3d DCA 2008) (“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.”); Avael Law Firm, PLLC v. Sechrist, 347 So. 3d
424, 427 n.5 (Fla. 3d DCA 2022) (“‘[A] motion for rehearing directed to a non-
final order . . . is not authorized under the rules and does not toll the time for
filing the notice of appeal’ from an appealable, non-final order.” (quoting Deal
v. Deal, 783 So. 2d 319, 321 (Fla. 5th DCA 2001))); Doukas v. Doukas, 335
5 So. 3d 218, 219 (Fla. 1st DCA 2022) (“A motion for rehearing is not
authorized as to a non-final order, so it does not toll the time for appeal.”);
Lovelace v. Lovelace, 124 So. 3d 447, 447 (Fla. 1st DCA 2013) (“The law in
Florida is well settled that a motion for rehearing or reconsideration does not
toll the time for filing an appeal from a non-final order reviewable pursuant to
the provisions of Florida Rule of Appellate Procedure 9.130.”).
Development encourages us to interpret the language in Rule 1.530
which states “[t]o preserve for appeal a challenge to the failure of the trial
court to make required findings of fact, a party must raise that issue in a
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Third District Court of Appeal State of Florida
Opinion filed September 13, 2023. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1175 Lower Tribunal No. 23-14668 ________________
Send Enterprises, LLC, et al., Appellants,
vs.
Set Drive, LLC, et al., Appellees.
An Appeal from non-final orders from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge.
Douglas Cox, and Nicole Pearl, in proper persons.
León Cosgrove Jiménez, LLP, Marcos Daniel Jiménez and Derek E. León, Corey D. Berman and Sofia Manzo; Bauch & Michaels, LLC, and Paul M. Bauch (Chicago, IL), for appellees.
Before EMAS, FERNANDEZ and GORDO, JJ.
GORDO, J. ON MOTION TO DISMISS
Set Drive, LLC and Phillip Sylvester (collectively, “Set Drive”) move to
dismiss Drive Development, LLC’s (“Development”)1 appeal of a non-final
order appointing a receiver and an order denying a motion for rehearing
pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(D). For the
reasons detailed below, we grant the motion and dismiss this appeal as
untimely.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2023, the trial court entered an order granting Set Drive’s
motion for appointment of a receiver. Two days later, Development filed an
emergency motion for rehearing raising substantive arguments and
asserting the trial court failed to make sufficient findings of fact. Following a
hearing, the trial court denied the emergency motion for rehearing on May
30, 2023. Development filed a notice of appeal on June 30, 2023.
Set Drive subsequently filed the instant motion to dismiss, arguing the
appeal was untimely as it was not filed within thirty days of the May 15, 2023,
order appointing a receiver. Specifically, it asserts this Court lacks
1 This includes Drive Realty, LLC, Douglas Cox and Nicole Pearl. While this appeal originally included Send Enterprises, LLC and Drive Development Group, LLC, these parties filed a notice of voluntary dismissal in the pendency of this appeal.
2 jurisdiction as Development’s emergency motion for rehearing did not toll
rendition of the order appointing a receiver. Development filed a response
in opposition contending that under the newly amended Florida Rule of Civil
Procedure 1.530, its emergency motion for rehearing tolled rendition of the
order appointing the receiver. 2
LEGAL ANALYSIS
We have for review a somewhat novel issue based on newly amended
Rule 1.530: Does the new amendment of Rule 1.530 authorize a motion for
rehearing of non-final orders, such that it tolls rendition of the order on appeal
during the rehearing period?
The Florida Supreme Court has recently amended Rule 1.530 to read:
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. To preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
Fla. R. Civ. P. 1.530(a) (emphasis added).
2 Because the relevant amendment to Rule 1.530(a) became effective on April 27, 2023, the amended Rule is applicable here. See In re Amends. to Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L. Rule of Proc. 12.530, 48 Fla. L. Weekly S69 (Fla. Apr. 27, 2023).
3 The Florida Supreme Court stated this amendment was “necessary to
clarify that filing a motion for rehearing is required to preserve an objection
to insufficient trial court findings in a final judgment order.” In re Amends. to
Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L. Rule of Proc. 12.530, 346 So. 3d
1161, 1162 (Fla. 2022). The Florida Supreme Court later expanded that
finding and made the amended Rule “applicable to all orders, not just final
judgments.” In re Amends. to Fla. Rule of Civ. Proc. 1.530 & Fla. Fam. L.
Rule of Proc. 12.530, 48 Fla. L. Weekly S69 (Fla. Apr. 27, 2023).
Development argues that by utilizing this language, the Florida
Supreme Court intended to authorize motions for rehearing to toll rendition
of non-final orders. We are not so persuaded.
We begin by recognizing that under Florida law there are certain
motions that, when filed in the trial court, toll rendition of an order. Pursuant
to Florida Rule of Appellate Procedure 9.020(h)(1):
(1) Motions Tolling Rendition. The following motions, if authorized and timely filed, toll rendition unless another applicable rule of procedure specifically provides to the contrary: ... (B) motion for rehearing;
Fla. R. App. P. 9.020(h) (emphasis added). Here, it is uncontested that
Development filed a timely emergency motion for rehearing which was ruled
on by the trial court on May 30, 2023. The question then becomes whether
4 the motion for rehearing was authorized thus tolling rendition of the order on
appeal, or another applicable rule of procedure specifically provides to the
contrary.
An order granting the appointment of a receiver is one of the
enumerated appealable non-final orders reviewable pursuant to Florida Rule
of Appellate Procedure 9.130(a)(3)(D). Pursuant to Rule 9.130(a)(5),
“[m]otions for rehearing directed to these orders are not authorized under
these rules and therefore will not toll the time for filing a notice of appeal.”
Fla. R. App. P. 9.130(a)(5) (emphasis added).
It is therefore well-established Florida law that motions for rehearing of
non-final orders are unauthorized and cannot toll rendition of an order
pursuant to Rule 9.020(h)(1)(B). See LaCarrere v. Reilly, 987 So. 2d 816,
816 (Fla. 3d DCA 2008) (“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.”); Avael Law Firm, PLLC v. Sechrist, 347 So. 3d
424, 427 n.5 (Fla. 3d DCA 2022) (“‘[A] motion for rehearing directed to a non-
final order . . . is not authorized under the rules and does not toll the time for
filing the notice of appeal’ from an appealable, non-final order.” (quoting Deal
v. Deal, 783 So. 2d 319, 321 (Fla. 5th DCA 2001))); Doukas v. Doukas, 335
5 So. 3d 218, 219 (Fla. 1st DCA 2022) (“A motion for rehearing is not
authorized as to a non-final order, so it does not toll the time for appeal.”);
Lovelace v. Lovelace, 124 So. 3d 447, 447 (Fla. 1st DCA 2013) (“The law in
Florida is well settled that a motion for rehearing or reconsideration does not
toll the time for filing an appeal from a non-final order reviewable pursuant to
the provisions of Florida Rule of Appellate Procedure 9.130.”).
Development encourages us to interpret the language in Rule 1.530
which states “[t]o preserve for appeal a challenge to the failure of the trial
court to make required findings of fact, a party must raise that issue in a
motion for rehearing under this rule,” as an implicit authorization of these
motions for rehearing for purposes of tolling rendition under 9.020(h)(1)(B).
See Fla. R. Civ. P. 1.530(a). We decline such an interpretation without an
express directive in the text of the new Rule because another specific
applicable rule of appellate procedure provides to the contrary—Rule
9.130(a)(5). Such a reading would be an improper expansion of the time
limits to exercise our jurisdiction.
If the Florida Supreme Court had intended to create an exception to
the well-established law cited above and authorize motions for rehearing
pursuant to Rule 1.530 to toll rendition of non-final orders, it surely had
6 enough ink to do so. The glaring absence of any such express language in
the text of the newly amended Rule or its amending language speaks loudly.
We therefore write to provide clarity and guidance to practitioners and
litigants in emphasizing that if a litigant wishes to challenge a non-final order
pursuant to Rule 1.530, they must file their appeal within the time limits
prescribed by Florida Rule of Appellate Procedure 9.130(b). 3 See Fla. R.
App. P. 9.130(b) (“Jurisdiction of the court under subdivisions (a)(3)-(a)(5) of
this rule 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.”).
Motion to dismiss granted; appeal dismissed.
3 We recognize that the trial court may not modify a non-final order on appeal without leave of the appellate court. See Exclusive Motoring Worldwide, Inc. v. Soral Invs., Inc., 349 So. 3d 490, 491 (Fla. 3d DCA 2022); Heritage Prop. & Cas. Ins. Co. v. Williams, 338 So. 3d 1119, 1121–22 (Fla. 1st DCA 2022); Soles v. Soles, 536 So. 2d 367, 368 (Fla. 1st DCA 1988). We therefore conclude a litigant must still timely file their notice of appeal but, if necessary, may ask this Court to relinquish jurisdiction for the trial court to consider any timely motion for rehearing.