STEPHEN CHAMBLEE v. MICHAEL FIGUROA o/b/o A.A.F.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEPHEN CHAMBLEE,
Appellant,
v.
MICHAEL FIGUEROA o/b/o A.A.F.,
Appellee.
No. 4D20-83
[October 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No.
DVCE19007200.
Michael A. Dye of The Law Offices of Michael A. Dye, PA, Fort
Lauderdale, for appellant.
Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort
Lauderdale, for appellee.
PER CURIAM.
In this appeal from a final judgment for protection against stalking
violence, appellant failed to serve his pro se motion for rehearing in
accordance with the applicable provisions of rule 2.516 of the Florida
Rules of Judicial Administration (“Fla. R. Jud. Admin.”). As a result, the
motion did not toll rendition of the judgment such that the subsequently
filed notice of appeal timely invoked this court’s jurisdiction to review the
judgment. We therefore dismiss this appeal for lack of jurisdiction.
After entry of the judgment, appellant filed a pro se motion for rehearing
pursuant to rules 12.530 and 12.540 of the Florida Family Law Rules of
Procedure (“Fla. Fam. L. R. P.”). The motion contained no certificate of
service indicating that it was served in any way on the appellee or his
counsel. Appellant certified in his pro se motion only that the document
was “filed” via “hand delivery” to the trial court clerk on December 5, 2019,
which was the fifteenth day after entry of the judgment. Appellant
ultimately filed his notice of appeal more than thirty days from the date of
entry of the judgment, but within thirty days of the date of entry of the
trial court’s order denying the pro se post-judgment motion. See Fla. R.
App. P. 9.110(b) (appeals from final orders in civil cases are commenced
by the filing of a notice of appeal “with the clerk of the lower tribunal within
30 days of rendition of the order to be reviewed”); see also Fla. R. App. P.
9.130(a)(4) (“[o]rders disposing of motions . . . that suspend rendition are
not reviewable separately from a review of the final order”).
We note at the outset that appellant challenges in this appeal only the
final judgment against stalking violence entered against him. He raises no
issues on appeal that could be construed as challenging the trial court’s
denial of his pro se post-judgment motion to the extent that motion
purported to seek relief from the judgment pursuant to Fla. Fam. L. R. P.
12.540. Cf. Fla. R. App. P. 9.130(a)(5) (orders entered on “authorized and
timely motion[s] for relief from judgment” are reviewed in accordance with
the rule governing non-final appeals). In addition, appellant’s pro se post-
judgment motion, to the extent it sought relief from the judgment pursuant
to Fla. Fam. L. R. P. 12.540, did not “suspend” operation of the judgment
or affect its “finality” for purposes of appellate review. See Fla. Fam. L. R.
P. 12.540(b); see also Fla. R. App. P. 9.020(h)(1)(A)-(J) (orders on motions
for relief from judgment not listed among orders that “toll rendition”).
Only a timely filed motion for rehearing in this case would have tolled
or suspended rendition of the final judgment against stalking violence, for
purposes of the thirty-day time limit for initiating appellate review from
the judgment, until a signed, written order on the motion was filed with
the trial court clerk. Fla. R. App. P. 9.020(h)(1)(B), (2)(A). However, in a
family law proceeding such as this one, “[a] motion for new trial or for
rehearing must be served not later than 15 days after the return of the
verdict in a jury action or the date of filing of the judgment in a non-jury
action.” Fla. Fam. L. R. P. 12.530(b) (emphasis added); see also Fla. Fam.
L. R. P. 12.010(a)(1) (family law rules apply to proceedings on petitions for
injunctions for protection against stalking violence). “If a motion for
rehearing is not timely served it does not toll rendition of the judgment for
purposes of filing an appeal.” Migliore v. Migliore, 717 So. 2d 1077, 1079
(Fla. 4th DCA 1998) (citation omitted) (emphasis added) (construing Fla.
R. Civ. P. 1.530, upon which Fla. Fam. L. R. P. 12.530 is based); see also
Dann v. Dann, 24 So. 3d 791, 791 (Fla. 5th DCA 2009) (dismissing family
law appeal as untimely filed on grounds that motion for rehearing, not
timely served in accordance with Fla. Fam. L. R. P. 12.530, did not
suspend rendition of the judgment).
In his response to the order directing him to show cause why we should
not dismiss the appeal as having been untimely filed, appellant asks that
we presume timely service of his pro se motion for rehearing simply from
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the timely in-person filing of the motion with the trial court clerk, and
consequent uploading of the document by the clerk into Florida’s e-filing
portal, on the last day for service of the motion. However, we cannot
presume timely service from these facts because appellant also concedes
in his response that he never registered as a self-represented litigant on
the portal.
Service of appellant’s pro se motion for rehearing was required to be in
accordance with Fla. R. Jud. Admin. 2.516. See Fla. Fam. L. R. P.
12.080(a)(1) (adopting provisions of Fla. R. Jud. Admin. 2.516 for “[s]ervice
of pleadings and documents after commencement [in] all family law
actions, except proceedings for injunctions for protection against . . .
stalking”); Fla. Fam. L. R. P. 12.080(a)(2) (service in “proceedings for
injunctions against . . . stalking” is governed by Fla. Fam. L. R. P. 12.610,
“where it is in conflict with this rule”); Fla. Fam. L. R. P. 12.610(b)(2)(C)
(“Service of pleadings in cases of domestic, repeat, dating, or sexual
violence, or stalking other than petitions, supplemental petitions, and
orders granting injunctions shall be governed by rule 12.080, except that
service of a motion to modify or vacate an injunction should be by notice
that is reasonably calculated to apprise the nonmoving party of the
pendency of the proceedings.” (emphasis added)).
Fla. R. Jud. Admin. 2.516 states, in relevant part, that “[i]f a party not
represented by an attorney does not designate an e-mail address for
service in a proceeding, service on and by that party must be by the means
provided in subdivision (b)(2).” Fla. R. Jud. Admin. 2.516(b)(1)(C)
(emphasis added). Subdivision (b)(2) of the rule states:
Service on and by all parties who are not represented by an
attorney and who do not designate an e-mail address, and on
and by all attorneys excused from e-mail service, must be
made by delivering a copy of the document or by mailing it to
the party or attorney at their last known address or, if no
address is known, by noting the non-service in the certificate
of service, and stating in the certificate of service that a copy
of the served document may be obtained, on request, from the
clerk of the court or from the party serving the document.
Fla. R. Jud. Admin. 2.516(b)(2) (emphasis added). This subdivision then
provides that “[s]ervice by mail is complete upon mailing,” id., and
delineates all the alternative ways in which “[d]elivery of a copy within this
rule is complete[,]” id., none of which are by way of any automatic email
service on a party or that party’s counsel achieved by a trial court clerk
uploading a filed document into the e-filing portal. See Fla. R. Jud. Admin.
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2.516(b)(2)(A)–(E); see also Korman v. Stern, 294 So. 3d 918, 921 (Fla. 4th
DCA 2020) (an unrepresented party, who has not designated an email
address for service, must effectuate service in accordance with the
methods set forth in Fla. R. Jud. Admin. 2.516(b)(2)); Leila Corp. of St. Pete
v. Ossi, 144 So. 3d 644, 648 (Fla. 2d DCA 2014) (the methods of service
set forth in Fla. R. Jud. Admin. 2.516(b)(2) are exclusive when applicable).
Given the concession made by appellant in his response to our show
cause order, we must dismiss this appeal as having been untimely filed.
Appellant’s pro se motion for rehearing was never served, much less timely
served, on appellee or appellee’s counsel in accordance with any of the
methods set forth in Fla. R. Jud. Admin. 2.516(b)(2), such that the motion
tolled or suspended rendition of the judgment for purposes of the time for
invoking this court’s jurisdiction to review the judgment. As a result,
dismissal of this appeal on the court’s own motion is appropriate. See,
e.g., Polk Cnty. v. Sofka, 702 So. 2d 1243, 1245 (Fla. 1997) (“[I]f want of
jurisdiction appears at any stage of the proceedings, original or appellate,
the court should notice the defect and enter an appropriate order.”); Ruffin
v. Kingswood E. Condo. Ass’n, 719 So. 2d 951, 952 (Fla. 4th DCA 1998)
(“It is well settled that lack of subject matter jurisdiction may be raised
sua sponte by an appellate court.”); Klingensmith v. Ferd & Gladys Alpert
Jewish Fam., 997 So. 2d 436, 436 (Fla. 4th DCA 2008) (“We do not reach
the merits of the appeal because we have no jurisdiction.”).
Dismissed.
FORST, KLINGENSMITH and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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