Martini v. Young11/18/2005
2d 622 (Fla. 1st DCA 1996)(Rule 1.540(a) not designed to permit substantive changes in final orders).
Rule 1.540(a) is specifically directed at the type of clerical corrections made by the trial court here, as a result of Smith's failure to circulate the order. See, e.g., Town of Hialeah Gardens v. Hendry, 376 So. 2d 1162 (Fla. 1979)(trial counsel's failure to mail correct copy of appealable order constituted clerical mistake within Rule 1.540(a)); Ashley v. State, 845 So. 2d 1008, 1009 n. 1 (Fla. 5th DCA 2003); Gordon v. Green, 382 So. 2d 1344 (Fla. 5th DCA 1980); Smith v. Garst, 289 So. 2d 774 (Fla. 2d DCA 1974).
The February 21, 2003 "final" order was thus a final order authorized by rule 1.540(a). See Pennington III v. Waldheim, M.D., 695 So. 2d 1269, 1271 (Fla. 5th DCA 1997); Howard v. McAuley, 436 So. 2d 392 (Fla. 2d DCA 1983). Florida Rule of Appellate Procedure 9.130(a)(5) authorizes review of "specified final orders," which are "filed under Florida Rule of Civil Procedure 1.540." See also Williams v. Roundtree, 464 So. 2d 1293 (Fla. 1st DCA 1985); Woldarsky v. Woldarsky, 243 So. 2d 629 (Fla. 1st DCA 1971)(trial court has authority to re-date earlier final judgment on which time to appeal had expired, pursuant to Rule 1.540(b)).
After the February 21, 2003 final order was filed, Pastermack brought a timely motion to amend it pursuant to Florida Rule of Civil Procedure 1.530(g). Consequently, on May 12, 2003, the court entered an amended order which stated that "after considering the argument of counsel made by all parties to the case, the Court finds that its orders entered on February 14, 2003 and February 21, 2003 may possibly have caused unnecessary confusion of the records . . . and should be set aside." The order then specifically states:
The prior orders in this case dated February 14, 2003, and February 21, 2003, are hereby vacated and set aside, and this order shall supersede both of the said orders in their entirety. (emphasis added)
The majority opinion discusses a finality problem, i.e., which of the orders, February 14, 2003 or February 21, 2003, is final. It also determines that the order of February 14, 2003 is a final order and that the appeal is therefore untimely. As noted above, if the February 14, 2003 order is a final order, Rule 1.540(a), which applies to final orders, gave the trial judge the jurisdiction to correct mistakes in the February 14, 2003 order, and enter the resulting order of February 21, 2003.
On the other hand, if the February 14, 2003 order was not final, the trial court had the inherent authority to enter a final order on February 21, 2003. See Johnson v. Johnson, 107 So. 342, 343 (Fla. 1926); Mills v. Martinez, 909 So. 2d 340, 342 (Fla. 5th DCA 2005)(it has been long established that a trial court judge has the right and authority at any time before entering a final judgment to change its rulings). At this point, the question of which February order is the final order is moot; because neither of these orders were ever appealed, and the court vacated both of them and substituted in their place the amended order on motion to dismiss dated May 12, 2003. It is the May 12, 2003 order from which the Martinis have filed their appeal. The Notice of Appeal as to this order was filed below on May 29, 2003, within the 30 day period for filing an appeal, and thus is timely.
Furthermore, even had the jurisdiction in this case been questionable, any restriction on the right of access to the courts provided to Florida citizens under the Florida Constitution, article I, section 21, should be construed in a way to favor the right of access. See Westside EKG Assoc. v. Foundation Health, 30 Florida
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