Marin v. Limonte

Third District Court of Appeal
State of Florida
Opinion filed July 30, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2601
Lower Tribunal No. 12-47394
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Rosa Marin and Smart Cars and Trucks Corporation,
Appellants,
vs.
Obed Limonte, Frank De La Oliva and Exus Isuzu Parts,
Corporation,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Beth Bloom,
Judge.
Jason M. Wandner, P.A., Jason M. Wandner, for appellants.
Claudio R. Cedrez Pellegrino, for appellees.
Before SUAREZ, SALTER, and LOGUE, JJ.
ON MOTION TO DISMISS
LOGUE, J.
Appellees, Obed Limonte, Frank De La Oliva, and Exus Isuzu Parts,
Corporation, move to dismiss this appeal for lack of subject matter jurisdiction
because the notice of appeal was not filed within thirty days of the final judgment.
For the reasons set forth below, we deny the motion to dismiss.
On August 23, 2013, the trial court granted summary judgment in favor of
appellees. On August 26, 2013, appellants, Rosa Marin and Smart Car and Trucks
Corporation, filed a motion for rehearing. On August 29, 2013, the trial court
entered a final judgment dismissing appellants’ claims with prejudice. The trial
court subsequently denied appellants’ motion for rehearing on September 25, 2013.
Appellants filed their notice of appeal on October 2, 2013, which indicates that
they are taking an appeal from the order granting summary judgment and
subsequent denial of rehearing.
Appellees assert that the motion for rehearing did not toll the time for filing
a notice of appeal, because the motion was directed at a non-final, non-appealable
order granting summary judgment, and was therefore an “unauthorized” motion.
Where, as here, 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 Am., LLC, 106 So. 3d 87, 88 (Fla. 3d DCA 2013) (quoting
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Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987)). Accordingly, the motion to
dismiss is denied.
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