Wednesday, July 22, 2009

Deadline to Appeal Judgment Entered Pursuant Rule 1.540 Not Extended by Motion for Rehearing and Missed Deadline Not Extended by Excusable Neglect

In SunTrust Bank v. Hodges (4D08-3452), the Fourth District affirmed the trial court's entry of final judgment after non-binding arbitration.

Twenty-one days after the arbitrator filed his award in the amount of $206,000, the appellee moved to confirm the award stating "that, pursuant to Florida Rule of Civil Procedure 1.820(h), Suntrust had not filed a motion for trial de novo within the twenty days of service, and that the decision of the nonbinding arbitrator was therefore final. The trial court granted Hodges’s motion and entered a final judgment."

Six days after the motion to confirm the arbitration award was filed, the appellant filed "its motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)." The appellant argued that "counsel for Suntrust had inadvertently failed to place the motion for trial de novo on the firm’s 'tickler' system and, accordingly, the trial court should grant relief based upon excusable neglect." The trial court denied the motion.

The appellant then filed a "Motion for Rehearing on Defendant, Suntrust Bank’s Motion for Relief from Final Judgment Pursuant to Fla. R. Civ. P. 1.540(b). On August 18, 2008, the trial court entered an order denying the motion for rehearing. It is from this order that Suntrust filed its notice of appeal on August 25, 2008. The notice of appeal from the order of July 16, 2008, is more than thirty days from the entry of the final judgment. This deprives us of jurisdiction."

Rejecting the appellants argument that the deadline to appeal was tolled, the Court held "there is no provision in the appellate rules for filing a petition to rehear an order entered upon a motion for relief under Florida Rule of Civil Procedure 1.540(b) and, therefore, rendition of said order is not affected by a motion for rehearing."

"By dismissing this case for lack of jurisdiction, we need not reach the merits of the case. However, upon reviewing the record on appeal, we conclude the trial court did not err in denying Suntrust’s motion to set aside the judgment, as there was a failure on the part of Suntrust to demonstrate excusable neglect."


Post a Comment