When To File A Notice Of Appeal

The Answer To That Question Just Got More Confusing

Can you toll (extend) the time to file a notice of appeal by filing a motion for rehearing directed toward an order granting summary judgment? Many attorneys believe that the answer to this question is yes, as long as you file your motion for rehearing within 15 days, as set forth in Florida Rules of Civil Procedure, Rule 1.530 governing motions for new trial and rehearing. That rule, however, only applies to final judgments. It does not apply to non-final orders, such as an order granting Summary Judgment. Nor does it apply to other non-final orders.

Many attorneys routinely file motions for rehearing directed toward non-final orders, believing they must do so within the 15 days set forth in Rule 1.530 and sometimes also believing that filing this motion for rehearing tolls the time to appeal. The Florida Rules of Civil Procedure do not authorize rehearing of non-final orders, and so filing a motion for rehearing of a non- final order generally does not toll the time to appeal. (Although the Rules of Civil Procedure do not authorize motions for rehearing of non-final orders, a trial court has inherent authority to reconsider, alter or rescind such orders before entry of final judgment. Some practitioners may confuse this inherent authority to reconsider with the authority provided by Rule 1.530)

But there are exceptions to the statement that filing a motion for rehearing of a non-final order does not toll the time to appeal, and motions for rehearing directed toward orders granting summary judgments may be one of them. In two recent opinions, the Third District Court of Appeal confirmed its position that if there is no substantive difference between the rights adjudicated in an order granting summary judgment and the final judgment, then the court can treat a motion for rehearing of an order granting summary judgment as an authorized, premature motion which tolls the time to file a notice of appeal. Simpson v. Tarmac America, LLC, 106 So 3d 87, 88 (Fla. 3d DCA 2013); Marin v. Limonte, 143 So3rd 1099 (3rd DCA, 2104).

Both of these cases were decided on the basis of motions to dismiss filed by the appellee, arguing that the notice of appeal was not timely filed. In each case, the appellee asserted that the motion for rehearing of the order granting summary judgment did not toll the time to file the notice of appeal, because the motion was directed toward a non-final, non-appealable order and was therefore an unauthorized motion. The Third District Court of Appeal rejected this argument and explained that where there is “no substantive difference between the rights adjudicated in the order granting summary judgment (i.e. the interlocutory order) and the final summary judgment…there is no impediment to treating the motion for rehearing as an authorized; premature motion tolling the time for filing a notice of appeal”. Simpson v. Tarmac, 106 So 3d 87, 88 (Fla. 3d DCA 2013), Marin v. Limonte, at 1100 quoting Bass v. Jones, 511 So 2d at 441 (Fla. 1st DCA 1987).

So, it is clear that as long as there is no substantive difference between the order granting summary judgment and the final judgment, in both the First and the Third District Courts of Appeal, motions for rehearing directed toward the orders granting summary judgment will toll the time to appeal.

Three questions arise from this determination: First, what constitutes no substantial difference? Second, is this law the same in the other District Courts of Appeal? Third, how does this impact when we file notices of appeal?

There is very little guidance on what constitutes “no substantial difference” between the order granting summary judgment and the final judgment. Even if the substantive findings are the same, an order granting summary judgment confers different rights upon the litigants than a final summary judgment regarding things such as prejudgment interest and the right to recover attorneys’ fees. The Third and First Districts do not seem to deem these differences “substantial” for purposes of determining the tolling issue. The decisions of these courts are not binding, however, on other district courts of appeal. These other courts may find that these different rights render orders granting summary judgment substantially different from final summary judgments. In other words, it may not be safe to rely on the recent rulings of the Third District on this issue if you are in any district other than the First or the Third.

Also, depending on your case, there may be a substantial difference between your order granting summary judgment and the final judgment. Perhaps there was a correction or change between the order and the judgment. If so, you may be in danger of losing your right to appeal if you rely on the motion for rehearing of the summary judgment order tolling the time to appeal.