Friday, June 12, 2009

Rule 1.540 Does Not Apply to Non-Final Order

In Hollifield v. Renew & Co., Inc. (1D08-3677), the First DCA held the trial court improperly entered an order in an attempt to remedy counsel's admitted error in failing to file a notice of appeal. The court distinguished the error by counsel from "Pompi v. City of Jacksonville, 872 So. 2d 931 (Fla. 1st DCA 2004), whose holding applies to cases where the court or court staff substantially contributed to counsel’s failure to file a timely notice of appeal."

"We grant the petition because the circuit court departed from the essential requirements of law in utilizing Florida Rule of Civil Procedure 1.540 to allow an otherwise untimely notice of appeal.

As an alternative ground for issuance of the writ, our review discloses that Rule 1.540(b), under which the trial court granted relief, does not authorize relief from the type of order involved in this case. Rule 1.540 authorizes a trial court to grant relief "from a final judgment, decree, order, or proceeding" – not from a non-final order such as that at issue here. Fla. R. Civ. P. 1.540(b)."


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