Martini v. Young11/18/2005
erms of the rule, however, such a "correction" does not restart the time for taking an appeal; nor does it authorize vacating the order entirely. Further, it is firmly established that trial courts cannot, directly or indirectly, extend the time for a party to take an appeal, nor may it amend its judgment for this purpose. See Kippy Corp. v. Colburn, 177 So. 2d 193, 196-97 (Fla. 1965), and cases cited therein; Maxfly Aviation, Inc. v. Capital Airlines, Ltd., 843 So. 2d 973 (Fla. 4th DCA 2003).
SHARP, W., J., dissenting.
Although this case is an aged one for this court, I find it necessary, after reviewing the record, to dissent and write an opinion. This is not a case which should be dismissed for lack of jurisdiction, and on the merits it should be reversed.
Jurisdiction.
John and Kimberly Martini (the Martinis) filed a complaint on December 18, 2001 and an amended complaint on February 5, 2002, after the home they purchased from Daniel and Sally Young (the Youngs) contained serious latent defects which could not be repaired and which rendered the home uninhabitable. In addition to the Youngs, Tortoise Island Realty, Inc., (Tortoise Island), Toni L. Pastermack, P.A. (Pastermack) and Union Planters PMAC (Union Planters), were also sued.
The amended complaint alleged four causes of action: recision of contract, breach of contract, misrepresentation, and fraud. On March 18, 2002, Union Planters filed a motion to dismiss, which was followed by motions to dismiss from Tortoise Island April 11, 2002; Pastermack April 29, 2002, and the Youngs July 24, 2002.
On September 24, 2002, the court entered an agreed order granting Pastermack's motion to dismiss count I, and gave the Martinis 10 days to amend. On October 4, 2002, the court entered two agreed orders granting the Youngs motions to dismiss, and gave the Martinis ten days to amend. Finally, on December 12, 2002, the court entered an order which dismissed the amended complaint without prejudice and gave the Martinis 20 days to amend. The Martinis' attorney failed to amend on any of these occasions.
After the twenty-day period to file a second amended complaint lapsed, the Youngs and Union Planters filed an amended motion to dismiss and Pastermack filed a motion to dismiss with prejudice. A hearing on these motions was held on February 4, 2003, which resulted in an order entered February 14, 2003.
The February 14, 2003 order was prepared by counsel for the Youngs, Smith, at the direction of the trial court, and the order was based upon the trial court's oral pronouncement at the February 4, 2003 hearing. Smith did not circulate the proposed order to counsel for the other parties due to time constraints placed upon him by the trial judge. The judge executed the order and thereafter, counsel for Pastermack requested that minor changes be made in that order. Smith agreed, made the changes, titled the second proposed order "final," and submitted it to the trial court. On February 21, 2003, the court executed the second proposed "final" order which dismissed all causes of action in the amended complaint with prejudice, and held that the foreclosure action was not dismissed.
The February 21, 2003 order was a proper final order pursuant to Florida Rule of Civ. Proc. 1.540(a), which authorizes a court to correct errors "arising from oversight or omission...at any time on its own initiative." The "Authors Comment -- 1967," notes that this subsection "includes only errors or mistakes arising from accidental slip or omission" and that it does not include errors or mistakes "in substance of what is decided in the judgment or order." See also Bortz v. Bortz, 675 So.
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