Are you involved with probate litigation or an estate trial Palm Beach? Well, if you are, and a summary judgment was granted, you may want to read, or re-read, Florida’s 3rd District Court of Appeal’s opinion on when you can file a notice of appeal. Or, …..when does a motion for rehearing suspend, stop or toll the time to file a notice of appeal. While this is not a probate litigation case, probate litigators West Palm Beach know why this is important.
Summary Judgment and Appeals in Probate Litigation
- Many times in will contests or trust lawsuits Boca Raton, litigators file a motion for summary judgment
- Summary judgment may be granted when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law
- But orders on summary judgment are generally non final and what happens if you file a motion for rehearing which typically suspends the time to take an appeal? ….. and then the trial court enters a ruling
- Consider the recent, July, 2014, case out of the 3rd District Court of Appeal in Florida
- Marin v. Limonte, 143 So.3d 1099, 39 Fla. L. Weekly D 1609
Motions for Rehearing & Summary Judgment Orders
- Confused by motions for rehearings, orders on summary judgment and final judgments in Florida probate litigation?
- Many colleagues are frustrated by the hard and fast Florida Appellate Rules, and determining WHEN you can file a notice of appeal after a final judgment or a summary judgment is granted.
- Many colleagues confuse whether a motion for rehearing suspends or tolls the 30 days to file a notice of appeal.
- Even more get confused when there is an order of a “non final” nature like an order on summary judgment.
- A recent 3rd District case, boils it down to a short opinion explaining the rules, including the big exception of when you can treat a non final order as final for purposes of suspending the time to file a notice of appeal.
- When does a motion for rehearing stop the 30 day time period to appeal a final judgment ? or Can a motion for rehearing stop or suspend the 30 days to file a notice of appeal when the motion is directed to a summary judgment order ?
— August 23: Summary Judgment was granted by the trial court
— August 26: Motion for rehearing was filed
— August 29: Final judgment entered by trial court dismissing claims with prejudice
— September 25: trial court denies notion for rehearing
— October 2: notice of appeal filed
The appellees filed a motion to dismiss with the 3rd, arguing that the motion for rehearing did NOT toll the time for filing a notice of appeal because the motion for rehearing was directed at the order on summary judgment, not the final judgment.
The 3rd District : where there is no substantive difference between the rights adjudicated in the order granting summary judgment and the final judgment….. you can treat the motion for rehearing as an authorized, premature motion which tolls or suspends or stops the time for filing a notice of appeal.
What about Palm Beach’s 4th DCA?
- The appellate court for Palm Beach, Florida’s 4th District Court of Appeal, I do not think, has adopted this logic yet, and it may disagree in a future case. It is not bound by Bass v. Jones or the 3d DCA’s adoption of the rule here.
What is a trial attorney to do who is not in the 3rd DCA in Florida?
- Practically, it may not be “safe” to rely on this exception and/or hope that another court agrees that there is “no substantive difference” between the issues in the SJ and the final judgment.
- Sometimes there are minor differences, such as the added calculation of prejudgment interest and reservation of jurisdiction to award fees or costs or to enforce the order. Are those enough to make them different ? I have no idea and would never want to find out.
- Trial or appellate attorneys in Palm Beach may wish to file a renewed motion for rehearing within 15 days of the final summary judgment or to simply appeal timely.