Third District Court of Appeal
State of Florida
Opinion filed August 11, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1302
Lower Tribunal No. 17-4334
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Lisonel Perez,
Appellant,
vs.
Pedro A. Jaimot and Marilyn Jaimot,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Charles K.
Johnson, Judge.
Marrero, Chamizo, Marcer Law, LP and Julio C. Marrero, for appellant.
Bales Sommers & Klein, P.A. and Jason Klein and Richard M. Bales,
Jr., for appellees.
Before MILLER, LOBREE, and BOKOR, JJ.
ON MOTION TO DISMISS
MILLER, J.
Through this appeal, appellant, Lisonel Perez, seeks review of a
nonfinal order scheduling the sale of property ordered partitioned pursuant
to a final judgment executed nearly eighteen months ago. Appellees, Pedro
and Marilyn Jaimot, urge dismissal, contending this appeal is essentially an
untimely challenge to that judgment, and no other means of review are
available. Concluding we lack jurisdiction, we dismiss.
This is the third time this dispute has been before us for review. In the
early part of 2020, the lower tribunal rendered a summary final judgment on
a multi-count complaint and counterclaim, finding appellant and appellees
each owned a fifty percent undivided interest as tenants in common in certain
indivisible real property located in Homestead, Florida. The court awarded
monetary damages in favor of appellees and against appellant and ordered
partition by sale, appointing a special magistrate to sell the property. The
magistrate was empowered to elect between conducting a private sale or
public auction, as provided in section 64.071, Florida Statutes. Appellant
timely appealed the judgment, but we dismissed the appeal for failure to
prosecute.
A second appeal, challenging an order requiring cooperation with the
special magistrate in effectuating the sale, followed on the heels of the first.
2
The appeal was ostensibly abandoned, as it suffered the same fate as the
first. The lower court then scheduled a date for public auction, pursuant to
the provisions of section 45.031, Florida Statutes, and the instant appeal
ensued.
A well-developed body of precedent holds that an order of partition is
final at such time as the court directs the sale of the property. 1 See Camp
Phosphate Co. v. Anderson,
37 So. 722, 726 (Fla. 1904) (holding that a
decree which decides the right of the property at issue is considered final
when an order directs the sale of land “and the complainant is entitled to
have such decree carried immediately into execution”) (citation omitted);
Lovett v. Lovett,
112 So. 768, 783 (Fla. 1927) (“The final decree in the
present case is a decree of the court dated September 30, 1925, confirming
the report of the commissioners that there could be no partition, ordering a
sale of the lands, and appointing commissioners to make such sale.”); Morris
v. Garcia,
185 So. 3d 678, 679 (Fla. 3d DCA 2016) (“[W]e conclude the
partition order will not become final until such time as the court directs the
sale of the property.”) (citations omitted).
Here, the contested order merely fixed a sale date. The previously
appealed final judgment, however, already ordered partition, assigned the
1
See Fla. R. App. P. 9.110.
3
title and interests of the parties in the disputed property, and directed the
special magistrate to sell the property. Hence, adhering to our precedent,
we conclude the prior decree was final, rendering it ripe for appellate review.
As Florida Rule of Appellate Procedure 9.110(b) requires the filing of
a notice of appeal within thirty days of the rendition of a final order and the
earlier appeals were long abandoned, it is axiomatic this proceeding cannot
be used as a vehicle for reviving the appellate rights exercised in the earlier
related appeals. See Campos v. Campos,
230 So. 3d 553, 555 (Fla. 1st
DCA 2017) (“[F]ormer husband could have appealed the July 20, 2016 order
denying reunification if he had done so timely; but the trial court's repeating
the same ruling in the later order denying the motion to vacate cannot revive
an appeal period.”) (citation omitted); Caldwell v. Wal-Mart Stores, Inc.,
980
So. 2d 1226, 1229 (Fla. 1st DCA 2008) (“An untimely appeal cannot be
revived by obtaining a new order to the same effect as the original and then
filing the notice of appeal within thirty days of the more recent order.”)
(citations omitted); Gen. Motors Corp. v. Strickland,
913 So. 2d 1227, 1228
(Fla. 1st DCA 2005) (dismissing appeal where “Final Judgment for Attorney
Fees and Costs was a mere republication of the earlier order and did not
restart the time for filing an appeal”) (citation omitted).
4
Finally, we find no alternative mechanism for review. We have held
that an order scheduling a judicial sale date is “a purely administrative,
interlocutory step in the judicial sales process,” thus neither constitutes an
“appealable, non-final order under rule 9.130” nor rises to the level of
irreparable harm required to establish the jurisdictional threshold in certiorari.
Venezia v. Wells Fargo Bank,
258 So. 3d 539, 541 (Fla. 3d DCA 2018)
(quoting Pridgen v. First Union Bank,
879 So. 2d 21, 21 (Fla. 2d DCA 2004)).
Accordingly, we dismiss this appeal for want of jurisdiction.
Appeal dismissed.
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