Yellow Cab Co. v. Ewing Ex Rel. Jones

Third District Court of Appeal
State of Florida
Opinion filed July 05, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-969
Lower Tribunal No. 12-2537
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Yellow Cab Company,
Appellant,
vs.
Calvina Ewing, a minor, by and through her mother and next
friend, Tonya Jones,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Michael S. Kaufman, for appellant.
Rosenthal Law Group, and Alex P. Rosenthal and Rhiannon Sforza-Flick
(Weston), for appellee.
Before ROTHENBERG, C.J., and LAGOA and FERNANDEZ, JJ.
ROTHENBERG, C.J.
The defendant below, Yellow Cab Company, appeals from an amended
sanctions judgment entered in favor of the plaintiff, Calvina Ewing. Because
Yellow Cab Company’s notice of appeal was not timely filed, we dismiss the
appeal for lack of jurisdiction.
Whether Yellow Cab Company’s appeal was timely filed depends on
whether the amendment of the sanctions judgment was material. If the amendment
was material, the time to file an appeal began to run on the date the amended
sanctions judgment was rendered, not on the date the initial sanctions judgment
was rendered, and therefore, the appeal would be timely filed. However, if the
amendment was not material, the time to file the appeal began to run on the
rendition of the initial sanctions judgment, and therefore, the appeal would be
untimely filed. See St. Moritz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971)
(“An amendment or modification of an order or judgment in an immaterial way
does not toll the time within which review must be sought. But where the
modification or amendment materially changes the original order or judgment, the
limitation period is said to run from the time of such modification or
amendment.”); Rice v. Freeman, 939 So. 2d 1144, 1146 (Fla. 3d DCA 2006)
(“Florida follows the majority rule that, where a judgment is amended in a material
respect, the appeal time runs from the date of the amendment, provided the
amendment is material, not minor or formal.”) (quoting DeGale v. Krongold, Bass
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& Todd, 773 So. 2d 630, 631-32 (Fla. 3d DCA 2000)).
The record reflects that the final judgment and the sanctions judgment in the
instant case incorrectly referred to the defendant as Yellow Cab, Inc., rather than
Yellow Cab Company as set forth in the complaint and the motion to dismiss the
complaint. The trial court therefore amended the sanctions judgment and the final
judgment to reflect the correct name of the defendant, Yellow Cab Company, as
reflected in the plaintiff’s complaint and confirmed by Yellow Cab Company in its
motion to dismiss the complaint.
In DeGale, this Court addressed a similar situation and concluded that,
because the amended final judgment was entered to reflect the correct spelling of a
party’s name, “[t]he effect of the amendment was to correct mere clerical errors,
which had no impact on the rights of the parties or the finality of the trial court’s
original final summary judgment.” Thus, this Court found that the amendment
was not material, and therefore, the time for filing the appeal began to run when
the initial final judgment was rendered, not when the amended final judgment was
rendered. Accordingly, the appeal was dismissed as untimely filed.
As reflected above, the situation in this case is similar to the situation in
DeGale—a judgment was amended to reflect the correct name of a party as
properly stated in both the complaint and in the motion to dismiss. Thus, the
amendment to the sanctions judgment is not material because it merely corrects
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clerical errors, and because the time for filing the appeal began to run in June
2014, when the initial sanctions judgment was rendered, the appeal in the instant
case was untimely filed.
Appeal dismissed.
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