Jurisdiction is jurisdiction: a warning to litigators.

• Author: Carlyle, Shannon McLin
• Position: Florida

"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

Ex parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868).

Every litigator has, from time to time, found him or herself on the wrong side of an order or judgment. Often, the practitioner will seek to have the trial court remedy the error before considering an appeal. While this is often the prudent course of action, all practitioners must have a thorough understanding of the intricacies of the applicable appellate rules to ensure that the jurisdiction of the appellate court--and with it, the right to appeal--is not inadvertently waived. (1)

Jurisdiction after Final Orders

Most litigators are aware that a party has 30 days to file a notice of appeal, but not everyone appreciates the nuances of the 30 days running from "rendition" of the order in question. Under Florida Rule of Appellate Procedure 9.020(h), "an order is rendered when a signed, written order is filed with the clerk of the lower tribunal." (2) However, certain motions toll the rendition of certain orders as to certain parties. Specifically, Rule 9.020(h) lists the following "authorized" motions as suspending rendition:

* Motion for New Trial

* Motion for Rehearing

* Motion for Certification

* Motion to Alter or Amend

* Motion in Accordance with Prior Motion for Directed Verdict

* Motion in Arrest of Judgment

* Motion to Challenge the Verdict

Filing a motion that is not authorized does not toll rendition of the final order. Thus, if the party who wants to appeal waits longer than 30 days from the filing of the final order to appeal because of an unauthorized motion, i.e., one not listed in Rule 9.020(h), the appeal will be untimely and dismissed. (3)

It is important to remember that even if the motion is authorized, it must also be timely. If not, the 30 days for filing the notice of appeal runs from the date of the judgment, not the date of the order disposing of the motion. For example, in Martini v. Young, 921 So. 2d 647 (Fla. 5th DCA 2005), the appellate court dismissed an appeal for lack of jurisdiction when the appellant filed an authorized motion for rehearing outside of the 10-day deadline for filing rehearing motions. (4) Although the appellant's notice of appeal was filed within 30 days of the order disposing of the motion for rehearing, because the motion was untimely, it did not suspend rendition. The court reasoned that the "filing of a notice of appeal more than 30 days after the rendition of the order to be reviewed [wa]s fatal to their right to appeal." (5)

The same result occurred in Jones v. Jones, 845 So. 2d 1012 (Fla. 5th DCA 2003), in which a former husband never received a copy of the final judgment, and upon learning of its entry, filed a motion for rehearing three days late. Although the trial court noted the timing of the motion for rehearing and excused its tardiness, (6) the appellate court found that the trial court had no authority to waive the deadline. This case reiterates the adage: "jurisdiction is jurisdiction." (7)

Jurisdiction after Nonfinal Orders

Further, motions that toll rendition are authorized to toll only final orders. Thus, trial counsel who files a motion listed in Rule 9.020(h) directed to an appealable, nonfinal order under Rule 9.130 may lose the opportunity to seek immediate review of the nonfinal order if counsel does not file a notice of appeal within 30 days of rendition of the nonfinal order. (8) The Fifth District Court of Appeal addressed this situation in Deal v. Deal, 783 So. 2d 319 (Fla. 5th DCA 2001), in which the trial court entered an order awarding temporary parental responsibility to a mother. That order was an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) because it granted the right to immediate child custody in a family law matter. (9) The father, however, did not file a notice of appeal within 30 days. Instead, he filed a motion for rehearing. The trial court held a hearing to determine whether newly discovered evidence existed and, if so, whether...